JOSEPH Vs. KERALA STATE ELECTRICITY BOARD

JUDGEMENT

(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 v. Chief Secretary. Government of Kerala, 2003 3 KerLT 201 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. 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 v. State of Kerala,1991 2 KerLT 724.

(2.) 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.

(3.) Unfortunately, the aforesaid amendment to C.P.C., 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 . 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 O. XXXIII R. 11 C.P.C. 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 incurium. 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 v. R.S. Nayak, 1988 2 SCC 602. Hence, R.V. Dev to the afore-noted extent is per incurium.