The sole defendant in the suit is the appellant. The suit has been filed by the plaintiffs claiming past maintenance charges at the rate of 250/- per month for each of them from 18.05.1985 till the date of plaint and also for directing the defendant to pay future maintenance at the above said rate.
2. The plaintiffs have filed the suit as informa pauper. The defendant contested suit on the ground that he is not liable to pay the maintenance. Ultimately, after hearing from both parties, the suit was finally decreed directing the defendant to pay to each of the plaintiffs a sum of Rs.150/- per month till they become major from 18.05.1985. In the decree it was also stated in clause No.5 that the defendant has to pay Court fee on Rs.18,057.75/- to the Government. As the original suit was filed by the plaintiffs as informa pauper by the plaintiffs, the defendant was directed to pay the court fee. The appeal has been filed only against this portion of decree viz., direction to pay the Court-fees for the entire amount claimed by the plaintiffs in the suit.
3. Though the respondent/plaintiffs in the suit were issued notice on many many occasions, none appears. Therefore, the learned counsel for the appellant was directed to take out a paper publication and accordingly, paper publication was also effected on 23.10.2009 and the proof was also filed by the learned counsel for the appellant. Even after effecting publication, the respondents did not appear either in person or through a pleader. Therefore, notice was ordered to be served on the learned Special Government Pleader as the dispute involved in this appeal is with regard to the liability of the appellant to pay the entire court fee for the amount claimed by the plaintiffs instead of the proportionate amount to which maintenance was awarded to the plaintiffs. On receipt of the notice, the learned Special Government Pleader appeared before this Court and made his submission.
4. Heard the learned counsel for the defendant/appellant as well as the learned Special Government Pleader.
5. The only point for consideration in this appeal is whether in a suit filed by the plaintiffs as informa pauper being decreed directing the defendant to pay maintenance, the defendant is liable to pay the court fee for the entire claim amount made by the plaintiffs or to the extent to which the defendant was directed to pay maintenance.
6. The learned counsel for the appellant fairly submitted that only in respect of the Court-fees, he is arguing the appeal. The learned counsel for the appellant would contend that the plaintiffs have claimed huge amount towards maintenance in the suit, which they are not entitled to. In fact, the plaintiffs have filed the suit claiming Rs.250/- each from 18.05.1985 and in addition to such a claim, the plaintiffs have claimed Rs.75,000/- for performing the marriage of plaintiffs 2 to 4, who are minors by then. In the plaint, it was categorically stated that the sum of Rs.75,000/- was claimed considering the price index that would prevail at the time of the marriage of the plaintiffs 2 to 4 i.e., after 12 years. Consequently, the plaintiffs have valued the suit at the rate of Rs.2,40,750/- for which a sum of Rs.18,057 has to be paid as court fee. As the plaintiffs claim to sue the defendant as indigent person was allowed, the suit was entertained and ultimately i9t was decreed directing the defendant to pay the maintenance amount. However, the defendant was further directed to pay the Court fee of Rs.18,057/- which he is not entitled to. If at all, the plaintiff is entitled to pay court fee for the maintenance amount payable by the defendant at the rate of Rs. Rs.150/- per month from 18.05.1985 which worked out to Rs.69,450/- and a court fee of Rs.5,208.75 alone is payable. However, the court below erred in directing the defendant/appellant to pay the entire amount for which the plaintiffs have valued the suit, which is legally not sustainable.. In this context, the learned counsel for the appellant brought to the notice of this Court two Division Bench Judgment of this Court reported in The Secretary of State for India in council represented by the Collector of South Arcot Vs. Tripurna Sundarammal and Anr. (1926) 50 MLJ 280 and (Yanati) Rami Reddi and Anr. Vs. Tanati Chenchu Polamma AIR 1930 Mad 1000 for the proposition that the even in a case of informa pauper, the defendant can only be directed to pay to the extent to which the suit was decreed and not for the balance amount for which the suit was dismissed or to the extent to which relief was not granted to the plaintiffs. In the first decision judgment reported in (1926) 50 MLJ 280 (refered supra) the Division Bench following earlier judgment made in (1890) ILR 14 Mad 163 held as follows:-
'2.The next question is whether this Court should vary the decree of the District judge by directing the plaintiff to pay the difference between the amount decreed and the amount payable. Following the principle of the decision in Chandra-reka v. Secretary of State of India (1890) ILR 14 Mad 163 we hold that the plaintiff is bound to pay the difference between the Court-fee payable by her and the amount which is ordered to be recovered from the defendant, for, it is for the plaintiff to pay the Court-fee on her plaint and the defendant is only bound to pay on the amount which is decreed against him."
7. In the second decision of the Division Bench reported in AIR 1930 Mad 1000 (refered supra) question arose in regard to payment of Court-fee by the defendant and it was held as follows:-:-
3. Defendant 1 has been directed to pay the Court-fee of Rs.1,004-15-0 to the Government that being the sum which the plaintiff would have to pay to Government, she having been allowed to bring the suit as a pauper. Defendant 1's contention is that he should be ordered to pay court-fee only on the amount the plaintiff has succeeded in getting under the decree and that would amount to Rs.247. In support of this contention Srinivasa Ayyar v. Lakshmi Ammal A.I.R.1928 Mad.216 is relied upon. There it was held that under Order 33,Rules 10 and 11, Civil P.c., it is not open to the Court to direct the defendants to pay court-fees exceeding the amount which payable on that portion of the plaintiffs claim which is successful; and another case to the same effect is Ganga, Dayal Rai v. Mt.Gaura (1916) 38 All. 469. We think that the order of the trial Judge directing defendant 1 to pay the court-fee in respect of the amount in excess of that recovered of the amount in excess of that recovered in the suit under the decree by the plaintiff is wrong and we accordingly modify that part of the decree and direct defendant 1 to pay court-fee on the amount the plaintiff has succeeded in getting. The plaintiff will pay the balance of court-fee payable to Government.
4. In the result the appeal, except as regards the question of the court-fee is dismissed and the cross appeal of the respondent allowed in part with costs. The respondent will get costs on the appeal to the extent the appellant is unsuccessful and the appellant will get costs to the extent he is successful in the appeal. In the cross-appeal the appellant will pay the respondent's cost to the extent the respondent is successful."
8. The crux of the issue is whether the Court below is right in directing the defendant to pay Court-fees on the entire amount for which the suit was instituted by the plaintiffs as informa pauper or to the extent to which the suit was decreed. In this case, even though the suit was partly decreed granting only maintenance amount to the minor plaintiffs, the Court below directed the defendant/appellant to pay Court fees for the entire amount for which the suit was instituted..
9. It is evident from the decision of the Division Bench of this Court relied on by the learned counsel for the defendant/appellant mentioned above, it is not open to the Court to direct the defendant to pay Court-fees excepting the amount which is payable to that portion of the relief granted to the plaintiffs and that the balance Court-fee is not payable by the defendant. I am in respectfully bound by the decision of the Division Bench of this Court.
10. In this case, the children of the defendant have instituted the suit against their father for maintenance and other reliefs. The court below has only granted maintenance in favour of the plaintiffs at the rate of Rs.150/- per month from 18.05.1985 till they attain majority. Since the suit was laid as a pauper suit, the court below had directed the defendant/appellant herein to pay the court fee for the suit. Of course, the defendant has to pay the court fee to the extent to which the court below granted relief to the plaintiffs, but not for the entire amount as claimed by the plaintiffs in the suit inasmuch as the Court below has declined to grant other reliefs sought for by the plaintiffs. Moreover, the learned counsel for the defendant/appellant fairly submits that the defendant is willing to pay the court fee to the extent to which relief was granted to the plaintiffs.
11. In this case, even though the respondents were served, they have not appeared before this Court. Moreover, following the decision bench decisions, I hold that the defendant/appellant need not pay the court fee for the entire amount to which the suit was instituted by the plaintiffs, however, the defendant has to pay the court fee to the extent of the amount to which relief was granted to the plaintiffs.
12. In the result, the appeal is partly allowed. No costs.
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