RUKMANI ACHI Vs. SAMPOORNATHAMMAL

JUDGEMENT

(1.) The appellants are the second and third defendants in the suit which has given rise to this appeal. The suit was filed in forma pauperis and was unsuccessful. The appellants did not appear, but the order for the payment of Court-fee was made against them as well because their interests were the same as those of the plaintiff. This decision was upheld by the Subordinate Judge and Venkataramana Rao, J., in second appeal. This appeal is against the learned Judge's judgment under Cl. 15 of the Letters Patent.

(2.) The cases referred to by the learned Judge can no longer be regarded as having application here. Order 33, Rule 11 has been amended since the decision in Neelamma v. Mareppa (1935) 70 M.L.J. 128, the latest of the decisions referred to in the judgment under appeal. The rule as it now stands directs that where the plaintiff in a pauper suit fails, the Court shall direct him to pay the Court-fee. The rule provides for one exception, namely, the case of a suit by the next friend of a minor plaintiff. If a suit filed by the next friend has been filed unreasonably or improperly, the Court may order the next friend to pay personally the Court-fee. As the rule reads now it is clearly not open to the Court to order a defendant to pay the Court-fee. It is to be remembered that this is not a question of an order for costs. The Court's discretion in the matter of costs, other than the Court-fee, is not hampered.

(3.) The appeal will be allowed with costs throughout. In this Court and before Venkataramana Rao, J., the costs will be payable by the Government.