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A.S. No. 548 of 1994 - Joseph Vs. Kerala State Electricity Board, 2012 (4) KLT 870 : 2013 (1) KLJ 20 : 2012 (4) KHC 753

posted Feb 22, 2013, 12:04 AM by Law Kerala   [ updated Feb 22, 2013, 12:05 AM ]
 IN THE HIGH COURT OF KERALA AT ERNAKULAM


Thottathil B. Radhakrishnan and P. Bhavadasan, JJ.
A.S. No. 548 of 1994
Decided on : 18-09-2012
Head Note:-
Constitution of India, 1950 – Article 39A - Code of Civil Procedure, 1908 – Order 33 Rule 11 - Notification No. D1(A)- 43450/86 dated 13/01/1999 – Suits by Indigent Persons – Payment of Court Fee - Enable the court to exercise its discretion -  Whether an indigent person should be exempted or not, from payment of court-fees in all the circumstances of the case? 
Held:- the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.  
Settled Position of Law - If a decision has been given per incuriam, it does not provide any ratio decidendi to be followed with any value as a precedent. The Court can ignore it. 
Referred Case:- 
A.R.Antulay v. R.S.Nayak, (1988) 2 SCC 602 
For Appellant: 
  • V.N. Achutha Kurup (Sr.)
For Respondents: 
  • O.V. Radhakrishnan (Sr.)
  • S. Ramesh Babu (Addl. SC)
  • G. Janardana Kurup (SC)
  • N.D. Premachandran (SC)
  • C.K. Karunakaran (SC)
O R D E R

Thottathil B. Radhakrishnan. J.

1. This appeal instituted by the plaintiff was allowed in part on 11-11-2010. However, the fact that he was granted leave to institute this appeal as an indigent was not then noticed and hence, no direction was issued regarding recovery of court fee. Now, the office has pointed out the aforesaid aspect and has brought to our notice the decision of the Division Bench in R.V. Dev Vs. Chief Secretary, Govt. of Kerala, AIR 2004 Ker. 11 laying down, among other things, that a person who is permitted to sue as indigent person is liable to pay court-fees if the suit fails; and if suit succeeds in part, court-fees would have to be apportioned between plaintiff and defendant.

2. On a deeper examination, we see that the precedents on the basis of which R.V.Dev was decided were those rendered by this Court and different other High Courts before 1992, the latest among them being Andrew Vs. state of Kerala, (1991) 2 KLT 724.

3. Search by one among us, P.Bhavadasan J., has brought to the notice of this Bench that by notification No.D1(A)-43450/86 dated 13th January, 1999 published in Kerala Gazette dated 27th April, 1999, Rule 11 of Order 33 of the Code of Civil Procedure, "CPC", for short, was amended subsisting the word 'shall' occurring after clause (b) thereof by the word 'may'. The object sought to be achieved by that amendment is to enable the court to exercise its discretion as to whether an indigent person should be exempted or not, from payment of court-fees in all the circumstances of the case. Such amendment was made on the recommendation of the High Court that appropriate amendment to such effect needs to be made to effectuate the Directive Principles of State Policy as contained in Article 39A which provides that the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

4. Unfortunately, the aforesaid amendment to CPC, which is a piece of primary legislation, is not seen to have been brought to the notice of this Court during submissions and arguments that led to the precedent; R.V. Dev (supra). That case has been decided without noticing the binding statutory provisions as they stood even then. Therefore, to the extent that judgment tends to indicate that every plaintiff or appellant who loses any part of the plaint claim or claim in appeal has to suffer the court fee for such lost portion, is contrary to the statutory provision contained in Order XXXIII Rule 11 CPC as amended as per the afore-noted notification. Decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned are per incuriam. This is so because, some part of the decision or some step in the reasoning on which it is based, is found, on that account, to be demonstrably wrong, it is a settled rule that if a decision has been given per incuriam, it does not provide any ratio decidendi to be followed with any value as a precedent. The Court can ignore it. See for support A.R. Antulay Vs. R.S.Nayak, (1988) 2 SCC 602. Hence, R.V. Dev to the aforenoted extent is per incuriam.

5. Contextually, it is worthwhile to note the Division Bench decision of this Court in Andrew (supra) that having regard to the provision in Rule 12 of Order XXXIII, recovery of amount of court fees by the Collector in terms of Rule 14 could be had only in cases where a party is ordered to pay court fee in terms of Rule 10, 11 or 11a of Order XXXIII, as the case may be. The last limb of Rule 11 of Order XXXIII is not a compulsion on the court to pass an order for payment of court fee. In any view of the matter, by the amendment as per the notification noted above, the matter falls within the discretion of the court and the compulsion could be only to the extent of requiring the court to consider and pass an order as to payment of court fee. This includes fair amount of discretion, having regard to the totality of the facts and circumstances of each case, to direct whether the party has to pay the court fee; whether court fee has to be paid at least proportionate to the success; or, even whether any court fee is payable at all. This is the pearl of wisdom which we see in the amendment made by the notification which stands with the gaze of Article 39A of the Constitution as noted above.

6. With the aforesaid, we proceed to look at the facts of the case in hand. Plaintiff sued the Kerala State Electricity Board for damages on account of fire which broke out as a result of short circuit. Board was held liable. Quantum of damages ultimately fixed by this Court in appeal is only Rs. 30,000/-. In our view, it would be a travesty of justice to compel the plaintiff in such a case to pay court fee for the balance amount. Having regard to the order of costs already imposed, the liability to pay court fee for the amount of Rs. 30,000/- will be on the KSE Board. It is directed to pay such court fee failing which it will be open to the collector concerned to initiate steps on appropriate certification. No court fee is leviable on the balance amount. The appellant-plaintiff is exempted from paying court fee on this appeal and in the court below, it is so ordered in exercise of authority as noted above.

Ordered accordingly.


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