Devinder Singh vs Mst. Bhupinder Kaur and others

P.C. Pandit, J.—This is a defendant''s appeal against the decision of the learned Subordinate Judge 1st Class, Bhatinda, decreeing the plaintiffs'' suit for maintenance. In August, 1958, Bharpur Kaur brought a suit in forma pauperis, on her own as well as on behalf of her minor daughter Rajwant Kaur, against her step-son Devinder Singh for the recovery of maintenance allowance @ Rs. 200/- per month. Her allegations were that she was the widow of Balwant Singh, father of the defendant, and Rajwant Kaur was born to her from the loins of Balwant Singh. Balwant Singh died about 13 years back and after his death his property was inherited by his two sons Balbir Singh and Devinder Singh. Balbir Singh died without leaving any child or widow. After his death, the entire property came into the possession of Devinder Singh defendant. After the death of Balwant Singh, the defendant and Balbir Singh turned plaintiff No. 1 out of the house and refused to pay her any maintenance. The plaintiff along with her children went to the house of her father. The defendant had property in three villages, namely, Kuti, Haripura and Kalyan, which yielded an income of Rs. 6000/- per annum. He had houses in Bhatinda City, the annual rent of which was about Rs. 6000/-. According to her, she was entitled to receive maintenance from the defendant by custom as well as under the Hindu Adoption and Maintenance Act, 1956. She claimed maintenance @ Rs. 100/- for herself and Rs. 100/-for her minor daughter.

The suit was resisted by the defendant, who denied that the plaintiff was a pauper. He pleaded that neither the plaintiff was the widow of Balwant Singh deceased nor was Rajwant Kaur his daughter. It was admitted that the property of Balwant Singh was inherited by his two sons Devinder Singh and his brother Balbir Singh. Subsequently, Balbir Singh died issueless without leaving any widow and, for that reason, the entire property came into the bands of the defendant. It was stated that the plaintiffs were not entitled to any maintenance. It was admitted that the defendant had agricultural lands at villages Haripura and Kalyan Sukha, but income from those lands was not so much as alleged by the plaintiffs. It was also admitted that the defendant had residential property at Bhatinda, tut its income also had been wrongly assessed by the plaintiffs. The defendant had two daughters, a son, a mother and wife and he maintained them with great difficulty. The income from land and residential property was not more than Rs. 1800/- per annum, with which he and his family could hardly maintain themselves.

It might be mentioned that the defendant had filed two written statements, one dated 2nd March, 1958 and the other dated 8th of September, 1960. The former had been put in while denying the claim of the plaintiffs to sue as pauperis. In para 10 thereof, he had stated that the income from the houses in Bhatinda was Rs. 1200/- per annum, out of which Rs. 400/- had to be paid as tax and Rs. 400/- for repairs. Besides that, income from agricultural land situate at villages Kuti and Haripur was much less, that is, only Rs. 300/- or Rs. 400/-.

The trial Judge held that the plaintiffs were not paupers. But this order was subsequently set aside by this Court on 15th July, 1960 when the plaintiffs came here in revision against the same.

On the merits, the following issues were framed:

Whether Bharpur Kaur plaintiff is the widow and Rajwant Kaur plaintiff is the daughter of Balwant Singh deceased ?

If issue No. 1 is proved whether the plaintiffs are entitled to claim maintenance from the defendant ?

If issue No. 2 is proved, what should be the quantum of maintenance ?

The trial Judge held that Bharpur Kaur plaintiff was the widow and Rajwant Kaur the daughter of Balwant Singh deceased and further that the plaintiffs were entitled to claim maintenance from the defendant. It was also found that both the plaintiffs were entitled to Rs. 30/-per month as maintenance. On these findings the trial Judge on 31st May, 1961, allowed maintenance @ Rs. 30/- per month from 15th of July, 1960, the date on which this Court decided the revision petition of the plaintiffs reversing the order of the Court below disallowing them to sue in forma pauperis. It was also held that the plaintiffs would be entitled to recover arrears of maintenance and the costs of the suit. It was further directed under Order 33 rule 10, Code of Civil Procedure, that the defendant would be liable to pay court-fees which the plaintiffs would have paid had the suit not been brought in forma pauperis. Against this decision, the defendant has filed the present appeal praying that the decree of the trial Judge be set aside. Cross objections have also been put in by the plaintiffs for enhancing the rate of maintenance to Rs. 80/-. This order will dispose of the appeal as well as the cross-objections.

It may be stated that the learned counsel for the appellant has not challenged the findings of the trial Court on issues Nos. 1 and 2. It is, therefore, undisputed that Bharpur Kaur was the widow and Rajwant Kaur the daughter of Balwant Singh deceased and that both of them were entitled to claim maintenance from the defendant.

It may be mentioned that during the pendency of the appeal in this Court, Rajwant Kaur became a major and was married. She therefore, is not entitled to any maintenance. Cross-objections filed on her behalf are, consequently, dismissed.

Only two questions have been argued before us by the counsel for the parties. The first is regarding the quantum of maintenance and the other is about the order passed by the Court below relating to the payment of court-fees.

As regards the amount of maintenance to be paid by the appellant, it is necessary to find out what his income was. On this point, it is in evidence that the defendant had lands in three villages, namely, Kalyan Sukha, Haripur and Kuti. Besides, he had some shops and quarters in Bhatinda. P.W. 7 Fateh Singh, father of Bharpur Kaur plaintiff, stated that the annual income of the defendant was Rs. 3000/ 4000. The plaintiff herself as P.W. 8 deposed that the defendant had about 35 Ghumaons of land and an Ihata containing houses in Bhatinda. According to her, defendant''s income was Rs. 6000/7000 per annum, both from land and rent of houses. Regarding this matter, the defendant also produced some witnesses. R.W. 1, Dharam Pal stated that the income of the defendant was about Rs. 150/- per month. The witness had seen the quarters belonging to the defendant. According to him, sweepers of the Municipal Committee resided there and they paid rent of Rs. 2 or 4 per month. In cross-examination, he admitted that the defendant never told him about his income and he had also not seen any rent deed written by any sweeper. This witness also deposed that the family of the defendant consisted of seven members including the defendant himself. They were his mother grand mother, three sons and a wife. According to R.W. 2 Bir Singh the income of the defendant was about Rs. 100/-. He did not know if the defendant possessed any agricultural land or not. R.W. 3 Suoha Singh stated that the defendant''s income was Rs. 100/125. P. M. He stated that the defendant had 24-25 quarters. According to the defendant himself, as R.W. 4, he had two sons and one daughter, besides mother, grandmother and wife. He had 1/3rd share of one Ghumaoh of land at Kalyan from which he had no income. He possessed 13 Bighas of land at village Haripur and income from that land was Rs. 390/- per annum. He had no land at village Kuti, because he had sold it one and a quarter years ago. At Bhatinda, he had leased out eight quarters at a rent of Rs. 4/- per month, eight at Rs. 5/- per month, five at Rs. 12/- per month and one at Rs. 15/- per month. The house in which he himself resided had been assessed at a rental of Rs. 40/- per month for the purposes of tax. About Rs. 124/- per annum were paid as house-tax and Rs. 400/500 on the repairs of houses. He stated with the income that he had, he made his both ends meet with difficulty.

So far as the oral evidence was concerned, it would be seen that both the parties were taking highly contradictory positions. According to the plaintiff, the income of the defendant was about Rs. 500/- per month, whereas the defendant stated that he used to get Rs. 142/- per month as rent after paying the taxes and the repair charges. From the land, he had an income of about Rs 32/- per month. That means, he got Rs. 174/- per month in all. Besides the oral evidence, the plaintiffs had produced the entries from the property tax register, Exhibit P. 1, and the house-tax register. Exhibit P. 2, relating to the property of the defendant in Bhatinda. According to these documents, the rent received by the defendant from that property was about Rs. 168/- per month, out of which he had to pay Rs. 9.50 as tax, leaving about Rs. 158.50 per month with him. In addition to these two documents, the plaintiffs also produced Ford Khata of village Haripur, Exhibit P. 3, copy of Jamabandi of 1954 relating to village Kal6yan Sakha, Exhibit P. 4 and Parcha Zamindar, Exhibit P. 5. Learned counsel for the parties submitted that in view of those three documents, defendant owned and possessed agricultural land measuring 29 Karnals and Maria. Taking into consideration the entire oral and document evidence, it appears that the appellant derived an income of Rs 300/- to Rs. 350/- p.m. from the land as well as the houses. Besides this, the appellant was 30 years of age when he made the statement in April 1961, and he was residing in Bhatinda, where he might be doing some job also and, earning something thereby.

Having got some idea about the income of the appellant, the point that needs consideration is as to how much should be paid to the step-mother as maintenance when she herself has no means Even taking the statement of the appellant regarding the members of his family as correct, in my opinion, Rs. 50/- per month would be the reasonable maintenance for respondent No. 1 and I hold accordingly. The cross-objections fifed by the respondents are, consequently, allowed to that extent. This maintenance she would have got with effect from the date on which she filed the suit, that is, 19th of August, 1958. But in the decree under appeal, it was mentioned that the plaintiffs would receive maintenance @ Rs. 30/- P.M. 15th of July, 1960. When they were allowed to sue to forma pauperis by the order of this Court when their revision petition was accepted. This part of the order of the Court below wad not challenged by the plaintiffs in the cross-objections filed by them and it had, consequently become final between the parties. It has, therefore, to be held that Shrimati Bharpur Kaur will get the enhanced amount of maintenance with effect from 15th of July, 1960, and she would be entitled to recover the arrears of maintenance from the appellant.

Now coming to the question about the payment of the court-fees, the Court below, as I have already mentioned above, directed the appellant under Order 33 rule 10, Code of Civil Procedure, to pay the entire court-fees which the respondents were liable to pay had the suit not been brought in forma pauperis. This part of the order is being challenged by the learned counsel for the appellant on the ground that since the suit of the respondents had been partly decreed, the appellant could not be asked to pay the entire court-fees. According to the learned counsel, where the plaintiff was only partly successful in his suit, the provisions of Order 33 rule 10, Code of Civil Procedure, would not strictly apply. He submitted that such a case had to be determined on the combined reading of rules 10 and 11 of Order 33. Code of Civil Procedure, and in such a contingency, the Court should direct the defendant to pay as court-fees the amount which was payable only on that portion of the plaintiff''s claim which was successful. It was not open to the Court to ask the defendant to pay court fees exceeding that amount.

There is no doubt that the contention of the learned counsel is supported by a number of authorities, especially of the Madras and Allahabad High Courts, and they had held that in such a contingency the defendant should be asked to pay only the proportionate amount of court-fees, which would be payable on that portion of the plaintiff''s claim which was successful and no more. This conclusion, they had arrived at on a combined reading of both the rules. Reference in this connection may be made to (Yanati) Rami Reddi and Another Vs. Tanati Chenchu Polamma, S. Srinivasa Ayyar and another v. Lakshmi Ammal AIR 1928 Mad. 216, Secretary of State v. Tripurna Sundarammal A.I.R 1926 Mad. 474, and Ganga Dahal Rai and another v. Musammat Gaura I.L.R 38 All. 490, Ganga Dahal Rai''s case was followed in a decision of the Patna High Court in Mahabir Pandey Vs. Emperor, (2). A similar view was taken by a Single Bench of the Andhra Pradesh High Court in Charla Satya Venkata Subbalakshmi Vs. Collector of West Godavari District at Eluru and Another,

Rules 10 and 11 of Order 33, Code of Civil Procedure, read as under:

Where the plaintiff succeeds in the suit, the Court shall calculate the amount of court-fees which would have been paid by the plaintiff if he had not 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.

Where the plaintiff fails in the suit or is dispaupered, or where the suit is withdrawn or dismissed,-

(a) because the summons lor the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service, or

(b) because the plaintiff does not appear when the suit is called on for hearing, 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 it he had not been permitted to sue as a pauper.

Rule 10 deals with the case of a pauper whose suit has succeeded, while rule 11 relates to the case of a pauper who fails in his suit. It is true that there is no specific provision for a case where the plaintiff has partly succeeded and partly failed. But the question is- is if necessary that a plaintiff''s suit must be decreed in its entirety before he can be said to have succeeded in the suit and the provisions of rule 10 made applicable to his case ? Even if his claim is decreed in part, will not it be said that he has succeeded in the suit ? Obviously, it cannot be said that he has failed in the suit. If the plaintiff has got some relief, whether in part or in full, I see no reason why it could not be said that he has succeeded in the suit. The word used in rule 10 is "succeeds" and not "succeeds in full or in its entirety or in toto". The legislature was contemplating only two contingencies, namely, where the plaintiff had succeeded whether in part or in full or where he had failed. The first contingency was covered by rule 10 and the other by rule 11. If the intention was otherwise, they could have made a specific rule for a case where the plaintiff had only partly succeeded. Since that had not been done, it seems reasonable to infer that partial success was included in the word "succeeds" in rule 10.

The view that I have taken is supported by a Bench decision of the Bombay High Court in The Secretary of Stale for India in Council v. Narayan Balkrishana Kulkarni ILR 29 Bom. 102. While considering the question whether the withdrawal of a suit by a pauper-plaintiff with permission to bring a fresh suit could be said to amount to failure of the plaintiff in the suit within the meaning of section 412 of the CPC (Act XIV of 1882) present Order 33 rule 11, Code of Civil Procedure-it was held-

Failure of the plaintiff in the particular suit withdrawn is all that the section requires. The next question is whether withdrawal u/s 373 amounts to failure. The phrases "failure" and "success" in relation to a suit, we understand to be used in sections 411 and 412, not as mere opposite terms but as contradictories. Failure is a universal and not a particular negative of success. Any modicum of success would prevent the result of a suit from being a failure within the meaning of section 412. An entire absence of success is failure. When a suit is compromised, the plaintiff cannot be said to have failed within the meaning of the section. The fact that he has obtained an agreement which he is willing to accept prevents the result of his suit from depriving him entirely of all success. But if there is absolutely nothing gained by the suit, so that the result is to leave the plaintiff in statu quo ante, or as here, by reason of his liability for costs, in a worse position, it would, we think, be a strain of language to say that the plaintiff had obtained any success of any kind or degree by his suit. And as already remarked the total and entire absence of success in a suit must, we think, be regarded as failure therein.

Naryan Balkrishna Kulkarni''s case was relied on in a Bench Decision of the Travancore-Cochin High Court in Prabhakara Menon and another v. Chief Secretary to Government of Travancore-Cochin and others, AIR 1953 TC 159 and a Single Bench of the Gujarat High Court in Mistri Parshottam Jinabhai Vs. Shah Motichand Shamji and Another,

Having come to the conclusion that partial success would also be included in the word "succeeds" occurring in rule 10, the next question arises as to what are the powers of a Court under this rule for making a direction for the payment of the court-fees in such a case ? The words used by the legislature in rule 10 are : "such amount shall be recoverable by the State Government from any party ordered by the decree to pay the same." In other words, the Court has discretion to order any party to pay the amount of court-fees which would have been paid by the plaintiff. if he had not been permitted to sue as a pauper. The matter bring discretionary with the Court it goes without saying that the said discretion should be exercised judicially and not in an arbitrary manner. But it cannot be laid down as a broad proposition of law that in such a case, the Court has to order that the defendant should pay only court-fees not exceeding the amount which was payable on that portion of the plaintiff''s claim which was successful. If it were to be he''d that the defendant had to pay only proportionate court-fees and no more, then it would mean that the Court had no discretion in the matter. Such is not the language employed in rule 10. The Court will take into consideration the various circumstances of each case, for example, the defence pat up by the defendant in the suit, the conduct of the parties, their financial position etc. etc and then pass suitable orders regarding the payment of court-fees. If the legislature had given the discretion to the Court under rule 10, that discretion should not in any way be hampered by holding that in a particular contingency, where the plaintiff had only partly succeeded, the defendant should be made to pay only proportionate court-fees and no more. The discretion given under this rule is unqualified and while exercising the same, the Court could mould the relief regarding the paym:at of the court-fees according to what justice required in the circumstances of a particular case. The Court can order any party to pay the court-fees. No hard and fast rule can be laid down for to exercise of that discretion.

This view of mine finis support in a Division Bench decision of the Calcutta High Court in Rohinikumar Pal Vs. Kusum Kamini Pal and Others, where it was held that the Court might in the exercise of its discretion under Order 33 rule 10. having regard to the circumstances of the case, mould its decree according to what the justice of the case required with reference to the court-fees payable and it could also direct which of the parties should pay the court-fees due to the Government. This authority was followed by the same Court in Province of Bengal Vs. Noor Ahmade and Others, and Jamini Kanta Das Vs. Union of India (UOI), . It was also relied on by the Oudh High Court in S. Mujawir Husain v. Mt. Kishwar Jehar Begam and others AIR 1941 Oudh. 66.

So for as the authorities, supporting the contention of the appellant, are concerned, I have gone through them and find that there is a Bench decision of the Madras High Court in Chandrareka v. Secretary of State for India ILR 14 Mad. 163. which forms the basis of all of them. In Rami Raddi''s case, reliance was placed on the cases of S. Srinivasa Ayyar and Ganga Dahal Rai. S. Srinivasa Ayyar''s case was based on the case of Ganga Dahal Rai in which reliance was placed on Chandrareka''s case. Trifiurna Sundarmmal''s case also relied on Chandrareka''s case. Badrinath''s case, was also based on Ganga Dahal Rat''s case.

Coming to the decision in Chandrareka''s case, there the plaintiff, who sued as a pauper, had alleged that he and the defendant, who was his sister, were members of an undivided family belonging to the Begam (dancing girl) caste. He claimed from her partition of what he described to be ancestral and joint property worth Rs. 34,662/- alleging that he was entitled to a half share according to the rules of their caste. Her defence was that her mother died very poor and there was no ancestral property and further that she acquired the property in her possession by practising the profession of her caste, viz. prostitution. The trial Court found that the ancestral property of which the plaintiff was entitled to a moiety was of the value of Rs. 200/- and the rest of the property in possession of the sister was acquired by her from a wealthy man, who had kept her. The Court below, therefore, passed a decree for Rs. 100/- as representing the half share of the property and dismissed the rest of his claim. The trial Court, however, refused the defendant her costs and further directed her to pay the court-fees mainly on the ground that she had set up a disreputable defence. Against that decision, she went in appeal before the Madras High Court. One of the objections urged by her was that the direction as to payment of stamp duty was illegal. The learned Judges accepted her appeal and came to the conclusion that notwithstanding her profession, the defendant had rights of property and was entitled to the protection of law, and no penalty could lawfully be imposed upon her for pleading what was found to be substantially true to entitle her for such protection. The direction, therefore, that she should pay court-fees in excess of Rs. 100/- decreed against her could not be supported.

It would thus be seen that it was nowhere laid down by the learned Judges that in every case where the plaintiff had partly succeeded, the Court must direct the defendant to pay only that much court-fees which the plaintiff would have to pay on the amount decreed in his favour and the rest had to be paid by the plaintiff himself. Chandrareka''s case was decided on its own peculiar facts. There the Court below had to order the defendant to pay the entire court-fees considering the disreputable defence put up by her. In appeal, the learned Judges were of the opinion that she could not be penalised for taking a plea which was subsequently found to be true. It is significant to mention that the provisions of the Code of Civil Procedure, dealing with the question of court-fees in a pauper suit, were not even referred to and discussed in that case. No proposition of law could, therefore, be said to have been laid down by the learned Judges there.

In the various authorties which lay down that where the plaintiff has partly succeeded, the payment of court-fees should be proportionately divided between the plaintiff and the defendant, the main reasons given in support of that view are broadly speaking two. First''s, it is said that by adopting that rule, the plaintiff is deterred from making exaggerated claims whereby the defendant is unnecessarily harassed. In ordinary suits, where the plaintiff was not suing as a pauper, he would not generally exaggerate his claim, because he would have to pay court-fees on that relief. In a pauper suit, however, since he his not to pay any court-fees, he can harass the defendant by making an extravagant claim. If in such a litigation, the plaintiff partly succeeded and the defendant was asked to pay the entire court-fees which the plaintiff would have himself paid if the suit was not brought in forma pauperism, the defendant was likely to suffer for no fault of his. It was, therefore, thought desirable that if the plaintiff knew before hand that he would have to pay the court-fees on that part of his claim which was rejected, he would not make an exaggerate d claim. This interpretation of law would, therefore, serve as a healthy check on the plaintiff''s making a frivolous claim. Secondly, the equities of the case demanded that if the plaintiff was partly successful, the court-fees payable thereon should also be proportionately divided between him and the defendant the defendant to pay on the claim which had been decreed and the plaintiff on that part of the claim which had been rejected.

As I look at the matter, the two reasons mentioned above are also fully met by the interpretation that I have given to rule 10 of Order 33, Code of Civil Procedure. In a case where the plaintiff had partly succeeded, the question regarding the payment of court-fees was entirely within the discretion of the Court. It would take into consideration all the circumstances and the equities of the case and then pass the order as to from whom and in what proportion the Court-fees had to be recovered by the State. While doing so, the learned Judge can take into consideration whether the claim of the plaintiff was really exaggerated or not, whether the litigation had been started merely to harass the defendant and what the equities of the case really demanded. It is needless to say that no hard and fast rule can be laid down with regard to the equities of a particular case.

Bearing these principles in mind, we have to see whether the discretion given to the Court under Order 33 rule 10, Code of Civil Procedure, had been properly exercised in this case or not. The plaintiffs had made a claim for Rs. 200/- per month as maintenance for both of them. But the trial Court decreed Rs. 30/- per mensem only for both the step-mother and the step sister of the defendant. Under these circumstances, the order of the Court below directing the defendant to pay the entire court-fees, which the plaintiffs were liable to pay had the suit not been brought in forma pauperis, seems to be somewhat harsh. In view of the partial success of the plaintiffs in the case and also considering that the defendant had pleaded that Bharpur Kaur and Rajwant Kaur were not even the widow and daughter respectively of Balwant Singh deceased, in my view, it would be just and proper if the parties were directed to pay the court-fees payable in the trial Court in equal shares. So far as the court-fees in appeal is concerned, the defendant had already paid the same and since his appeal is being dismissed, no direction is needed regarding the payment of court-fees in this Court.

So far as the court-fees on cross-objections is concerned, the same would also be paid in equal shares by the appellant and the respondents. It would be noticed that the respondents had claimed maintenance @ Rs. 80/- per month, while Bharpur Kaur is being awarded Rs. 50/- per mensem.

The result is that the appeal filed by Devinder Singh fails, except to the extent mentioned above, and is dismissed. The cross-objections filed by Bharpur Kaur are accepted to the extent indicated above.

So far as the other costs, apart from court-fees, are concerned, in the circumstances of this case, I am of the view that the parties should bear their own costs throughout.

H.R. Sodhi, J.

I agree.