Prabhakara Menon and Another vs Chief Secretary to Government of Travancore-Cochin and Others

The 2nd Plaintiff and the 11th Defendant are the Appellants in this case. The suit was by two Plaintiffs for and on behalf of the sub-tarwad for setting aside certain alienations. The 11th Defendant is also a member of the sub-tarwad." Prayer (a) in the plaint related to plaint A schedule properties, prayer (b) to B schedule, Prayer (c) to C schedule and prayer (d) to D schedule. Separate Court-fee had to be paid for each relief. Total Court-fee payable was Rs. 738-8-0. The suit was filed in ''forma pauperis''. It was decreed as regards (b) relief and dismissed in respect of other reliefs. The Plaintiffs were ordered to pay the Court-fee due to the State. From this decree the Plaintiffs appealed in respect of the reliefs disallowed by the trial Court. The appeal also was filed in ''forma pauperis''. The appeal was dismissed with costs. The State filed an execution petition to recover the Court-fee payable for the plaint and the appeal memorandum and sought to proceed against the B schedule property which the Plaintiff''s sub-tarwad got under the decree. The and Plaintiff opposed the petition contending that the State is not entitled to proceed against the B schedule property for the Court-fee due to the State. The Court below repelled this contention and allowed the Execution Petition filed by the State. The appeal is from that order.

Under Order 33, Rule 10, Code of Civil Procedure. when the Plaintiff succeeds in a pauper suit the Court-fee which he ought to have paid shall be recoverable by the State.

from any party ordered by the decree to pay the same, and shall be a first charge on the subject-matter of the suit.

It is argued for the Appellant that Order 33 Rule 10 will not apply to this Case since the Plaintiffs have not completely succeeded in the suit. We do not think that this position is correct. Reference may be made to a decision of the Bombay High Court in ''Secy. of State v. Naravan Balkrishna 29 Bom 102 . In that case the learned Judge observed thus:

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:

This decision was followed by the Travancore High Court in ''Narayanan v. Dewan of Travancore'' 38 Trav LR 277. To the same effect is the decision in ''Achamma v. Sirkar'' 19 Trav LT 1041. It was held in that case that the extent of success is not a matter of any moment so far as the provisions of Order 33 Rule 10, CPC are concerned and that any modicum of success would prevent the result of a suit from being a failure within the meaning of the said rule. In ''Government Advocate Punjab v. Shamsher Ali'' 154 Ind Cas 240 (Lah) the Lahore High Court held that provisions of Order 33, Rule 10 would apply to a case in which a Pauper Appeal is partly allowed. It is only in cases in which the Plaintiff totally fails in the suit that Order 33 Rule 11 will apply. In cases coming under Rule 10, the Court may order any party to the suit to pay the Court-fee due to the State and it will also be a first charge on the subject-matter of the suit. In cases coming under Rule 11 only the Plaintiff can be made liable for the Court-fee payable to the State. So far as the suit in this case is concerned, we have no doubt that Rule 10 applies to the case and that the State is entitled to a first charge on the B schedule property for the Court-fee due to the State in that suit.

As for the Court-fee payable for the appeal memorandum the State is not entitled to a charge on the B schedule property since that property was not the subject-matter of the appeal. The State has however attached the B schedule property for realising the Court-fee. It is argued for the Appellants that since B schedule property belongs to their sub-tarwad that property cannot be proceeded against for Court-fee payable by the Plaintiffs in their individual capacity. It is true that it is not stated in the decree, either of the trial Court or of the appellate Court, that the sub-tarwad of the Plaintiffs would be liable for the Court-fee payable to the State. But the suit was instituted by the Plaintiffs for and on behalf of their sub-tarwad and the degree in respect of the B schedule property was given in favour of the sub-tarwad and not in favour of the Plaintiffs in their individual capacity. If the sub-tarwad is not liable for the Court-fee payable for the suit there is no meaning in giving the State a first charge for that Court-fee on the property belonging to the sub-tarwad. The suit in this case must be taken to be one brought by the sub-tarwad itself. The Plaintiffs only represented the sub-tarwad. This does not mean that in all cases in which a suit is brought in forma pauperis by a junior member of a marumakkathiayam tarwad, the tarwad will be liable for the Court-fee due to the State. If the suit is brought without any necessity or bona fides and not for the benefit of the tarwad, it cannot be said to be a suit instituted by the tarwad. But when a pauper suit is instituted by a junior member in good faith for the benefit of the tarwad, there is no reason why the tarwad should not be regarded as the real Plaintiff in the suit, and consequently liable for the Court-fee payable to the State. Reference may be made in this connection to a decision of the Cochin High Court in ''Joonanji Hassan v. Abra Daniel Kunhi'' 22 Cochin 552. In that case, the kaikar of a synagogue filed a suit, on behalf of the synagogue. The description in the plaint clearly indicated that they instituted the suit in their representative capacity. The suit was dismissed and the Plaintiffs were made liable for the costs of the Defendant. When the Defendant sought to execute the decree for costs against the Plaintiffs they contended that the decree could not, be personally executed against them. It was held that the real Plaintiff in the case was the synagogue and that the decree for costs could not be executed personally against the Plaintiff.

We hold that the appeal in this case was filed for and on behalf of the sub-tarwad of the Plaintiffs and for its benefit and that the sub-tarwad should be deemed to be the real Appellant in this case. It must, therefore, be taken that under the decree in appeal the sub-tarwad is liable for the Court-fee due to the State. In the circumstances, we find no reason to interfere with the order of the Court below.

The appeal is dismissed with costs.