Yelumalai and Another by next friend M. Mariappa Naicker vs Kuppammal and Others

Venkatasubba Rao, J.—A question of some importance has been raised in this case by Mr. Devanathan. He contends that Order 33, Rules

10 and 11, Civil Procedure Code, do not apply to suits by paupers filed on the Original Side of the High Court. As this question must arise

frequently, I have directed notice to the Government Solicitor and the learned Advocate-General has appeared and argued the point. To deal with

this contention, it is necessary to examine several provisions of law. The broad question is, to what extent do the provisions of the CPC apply to

the High Court in the exercise of its ordinary original civil jurisdiction? Section 117 which occurs in Part IX provides that, save as provided in that

Part or in Part X or in rules, the provisions of the Code shall apply to High Courts. Section 121 runs thus:

The rules in the First Schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of

this Part.

Section 129 deals with the power of Chartered High Courts to make rules as to their original civil procedure. It says that, notwithstanding anything

in the Code, any such High Court may make such rules not inconsistent with the Letters Patent establishing it to regulate its own procedure in the

exercise of its original civil jurisdiction as it shall think fit. Then we come to Order 49 which specifies certain provisions of the Code inapplicable to

the Original Side of the High Court.

The result of these various provisions is, that the CPC is generally applicable to the High Court in the exercise of its ordinary original civil

jurisdiction, except where it is specifically excluded or unless the High Court itself has made rules superseding any particular provisions of the

Code.

Now turning to the rules of the Original Side, we find there is a specific rule to the same effect. Order 1, Rule 3, provides inter alia that the

provisions of the Code so far as they are inconsistent with the rules enacted shall stand repealed and superseded. The question then is, are Rules

10 and 11 of Order 33, Civil Procedure Code, applicable or not to the Original Side? Their application has not been excluded by the Code itself;

on the contrary, there is sufficient indication that they are intended to be applied. Order 49, while specifying the rules not applicable to the Original

Side, mentions among them, Rule 7 of Order 33, thus implying that the other rules of the same Order do apply.

In regard to pauper suits, there are some provisions in the Original Side Rules dealing with them; they are Rules 14 to 18 of Order 8. These

rules are very incomplete and they do not deal with various matters dealt with in the Code. There is nothing inconsistent in these rules with Order

33, Rules 10 and 11, Civil Procedure Code. As a matter of fact, the matters dealt with by the latter have not been dealt with under the Original

Side Rules at all and from what I have said, it follows that Order 33, Rules 10 and 11, Civil Procedure Code, are applicable to the Original Side.

The next part of Mr. Devanathan''s argument is based upon certain Fees Rules made by the High Court for being used and observed on the

Original Side. Order 2, Rule 2 (2) runs thus:

If an application for leave to sue, defend, or appeal in forma pauperis is granted, no fee shall be levied by the Registrar or the Sheriff, in respect of

any proceedings by, or on behalf of, the pauper, except the fees chargeable upon the said application and any proceedings incidental thereto.

Mr. Devanathan contends that this is an express rule providing that no fee shall be levied by the Registrar in respect of any proceeding taken by

a pauper, and he proceeds to argue that it therefore follows that Order 33, Rules 10 and 11, are inconsistent with this provision, as they

contemplate payment of court-fees in a pauper suit. The answer to this to my mind is simple. The court-fee rule only says that no fee shall be levied

by the Registrar, which means, no fee shall be levied by him (taking the case of a plaint) at the time of its being filed. But this does not say that the

pauper litigant cannot be directed to pay to the Government, at the termination of the suit, the court-fees, which he was excused from paying at the

outset. The court-fee rule speaks of levying a court-fee by the Registrar; whereas the rules in the Code deal with payment of court-fees in

connection with costs incurred in the course of litigation. I do not find any inconsistency between the court-fee rule in question and Order 33, Rules

10 and 11, Civil Procedure Code. Then remains the contention that the last mentioned provision is ultra vires of the Indian legislature. To deal with

this argument, it is first necessary to refer to Sections 3 and 4 of the Court-Fees Act, which show that that Act generally does not govern the

court-fees chargeable on the Original Side ; for, Section 3 enacts that the fees payable on the Original Side shall be collected in the manner

provided in the Act. The section, therefore, assuming that the court-fees chargeable are to be determined under some other provisions of the law,

goes on to specify the manner in which such court-fees shall be collected. It is the High Court that has the power to fix the court-fees payable on

the Original Side and it derives that power from either Section 106 or Section 107 of the Government of India Act. It is generally taken for granted

that the section that applies is the latter section which has replaced Section 15 of the High Courts Act, 1861. I must say that the wording of

Section 107 as well as the marginal note against that section gives one the impression that the table of fees mentioned in Clause (e) thereof refers to

subordinate Courts and not to the High Court itself. Section 15 of the High Courts Act which this section has superseded is less open to this

criticism than the latter section. However that may be, Section 106 is the general section that deals with the jurisdiction of the High Court, and the

terms of that section are wide enough to include the special powers mentioned in Section 107. It does not therefore signify whether the power to

settle court-fees is derived from Section 106 or from Section 107; for, in either case the power is ultimately to be traced to Section 106 itself. If

that be so, the next point to note is, that Section 106 is one of the provisions of the Government of India Act, which the Governor-General in

Council may repeal or alter. (See Fifth Schedule to that Act). Thus, there is nothing to prevent the Indian legislature from making rules pertaining to

court-fees applicable to the Original Side. I am therefore unable to accept the argument that Order 33, Rules 10 and 11, are ultra vires of the

Indian legislature. Therefore, the order that I made in the suit directing court-fees to be paid to government will stand.