MAHPHOOJ HUSSAIN Vs. KIRAN BANO

JUDGEMENT

(1.) This application has been listed today for admission but with consent of counsel for the parties it has been heard and disposed of on merits.

(2.) An application under S.152, C.P.C., which was disposed of by the impugned order, provides the basis of challenge in this case. On the said application of the plaintiff the decree was corrected in two ways. Originally, in the decree in the schedule of costs counsel's fee shown was Rs. 937.50 which, by the impugned order, was corrected to read as Rs. 1,875.00. Nextly, in the decree as passed originally though there was a direction that "the Court-fee which ought to have been affixed shall be recovered from the plaintiff" the amount of Court-fee was not included in the schedule of costs and as such a further direction in the impugned order is made to the effect that the Court-fee shall be impleaded in the cost of plaintiff. However, what bears emphasis is that the learned Additional District Judge took care also to mention categorically that "separate recovery proceedings should be started for the amount of Court-fee, against the defendant" though he did not spell out how that proceedings had to be started and in accordance of what provision the recovery shall be made. Shri M.L. Gupta, who appears for the non-petitioner-plaintiff, has made a twofold submission in reply to the contentions pressed by Shri Roman on behalf of the defendants-petitioners. Shri Gupta contends that reliance on Rule 526 of M.P. Civil Courts Rules, 1961, for short, the Rules, would not avail the defendants-petitioners because the instant case is not a case which belongs to the category of "undefended" cases. True it is that accordingly to Rule 526 in "undefended" cases counsel's fee has to be reckoned as one half of the amount due according to the scale mentioned in Rule 523. Shri Gupta contends that is the indigence proceedings the "case" was contested by the defendants though he has to concede that in the suit itself the defendants did not appear to defend the claim preferred in the suit by the plaintiff. I have also gone through the judgement on the basis of which the decree was prepared and the latter, indeed, categorically mentions that it was an 'ex parte decree'. In para 2 of the judgement itself it is mentioned that though the defendants 1 and 2 were earlier represented by their counsel, they later remained absent and the suit proceeded ex parte throughout.

(3.) I have no doubt that the fact that the defendants contested the indigence proceedings cannot he construed to mean that they contested also, on merits, the claim made in the suit. What Rule 526 contemplates while speaking of 'cases', is evidently the 'case' of claim in the suit being 'undefended'. The entire conspectus of the provisions preceding Rule 526 of Chapter 24 of the Rules, read as a whole, lends assurance to this construction. It also bears emphasis that the word "cases" has to be construed in its context and setting, the clue to which is provided by the preceding Rules 523, 524 and 525 wherein mention is made of "suits". That apart, the provision of Rule 16 of Order 33 has also to be borne in mind. It explicitly speaks of "costs" in relation to an application for permission to sue as an indigent person. Accordingly, unless and until it is made clear in the decree that the counsel's fee decreed also covers the cost of the indigence proceedings, which has to be assessed separately according to Rule 16, it is difficult to accept the position that the costs in the suit shown in decrees passed in all such cases include also costs determined in the matter of conduct of indigence proceedings. In the instant case, there is no determination of, or under as to costs of the indigence proceedings though the same terminated in favour of the plaintiffs. Indeed, there is no mention thereof in the judgement or even in the decree passed in the suit. It appears very clear to me that the costs decreed related merely to the costs on the sum of Rs. 80,000/- being the relief valued by the plaintiff.