Abstract
Pursuing civil litigation in India can be an expensive, uncertain and protracted process. Court fees vary across the country, and can be very high (for example, 10% of the suit value) and even if a plaintiff is successful, the court will not always award costs in her favour. An understaffed judiciary ensures that cases may take years to be finally decided. This article considers costs and fees under two broad heads – court fees, and all other fees (such as attorney fees). India’s Code of Civil Procedure vests deciding courts with the discretion to decide how costs are to be awarded, and requires them to give reasons in case courts choose not to allow costs “following the event,” thereby suggesting that the legislative imperative was for costs to be shifted to the loser. In practice, though, courts rarely so shift costs completely, indicating a significant disconnect between what the statute intended and what is actually practiced by courts. These twin features of cost and fee allocation in India are the inspiration for the title of this article.
Keywords
- Civil Procedure
- Constitutional Competence
- Bombay High
- Successful Party
- Justice Administration
These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.
Neela Badami received her first law degree (B.A., B.L (Hons.)) from the National Academy of Legal Studies and Research, University of Law, India, and her LL.M from the University of Michigan Law School, Ann Arbor, where she was a Hugo Grotius Fellow. She is currently a Senior Associate at Narasappa, Doraswamy and Raja, a Bangalore-based law firm (neela@narasappa.com).
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Notes
- 1.
Quoted in the 128th Report of the Law Commission of India on the Costs of Litigation in India (1988) available at http://lawcommissionofindia.nic.in/101-169/Report128.pdf.
- 2.
Since any analysis of cost and fee allocation is intrinsically tied in with the structure of the Indian judiciary, it is worth taking a quick moment to understand the hierarchy of the Indian courts. India has a quasi-federal structure with 29 States further sub-divided into about 601 administrative Districts. The Judicial system however has a unified structure, with the Supreme Court, the High Courts and the lower Courts comprising a single Judiciary. Each District has a District Court, and each State, a High Court. Each State has its own laws constituting Courts subordinate to the District Courts.
- 3.
Supra, note 2.
- 4.
See Secretary to Government of Madras v.P. R. Sriramulu (1996) 1 SCC 345.
- 5.
Available at http://lawcommissionofindia.nic.in/reports/report220.pdf.
- 6.
The Code consolidates the law relating to the procedures to be followed by the civil judicature, and it is a central statute. Available at http://www.legalhelpindia.com/bareacts/THE%20CODE%20OF%20CIVIL%20PROCEDURE,%201908.doc.
- 7.
Section 35, Code of Civil Procedure.
- 8.
Section 35(2), Code of Civil Procedure.
- 9.
Salem Advocate Bar Association v. Union of India AIR 2005 SC 3353, quoted in Mulla, The Code of Civil Procedure, 17th Edition (2007), (hereinafter, “Mulla”) at p. 614 (emphasis added).
- 10.
Section 122, the Code of Civil Procedure.
- 11.
A prosperous state in the Southern peninsula, and one of the most developed in India. Home to its capital city, Bangalore, which has achieved fame as India’s Silicon Valley.
- 12.
Chapter XIII, Rule 99 of the Karnataka Rules.
- 13.
Rule 100 of the Karnataka Rules.
- 14.
Situated on India’s western seaboard, and home to India’s financial and business capital, Mumbai.
- 15.
See Rule 606 of Chapter XXXI (Taxation and Advocates’ Fee) of the Bombay High Court (Original Side) Rules, Available at http://bombayhighcourt.nic.in/libweb/BHCRULESGUIDELINES.htm.
- 16.
- 17.
See Rules 1 – 4 of Part C (Award of Costs in Civil Suits) of Chapter 11, ibid.
- 18.
It provides that “If any suit or other proceedings including an execution proceedings but excluding an appeal or a revision any party objects to the claim of defence on the ground that the claim or defence or any part of it is, as against the objector, false or vexatious to the knowledge of the party by whom it has been put forward, and if thereafter, as against the objector, such claim or defence is disallowed, abandoned or withdrawn in whole or in part, the Court if it so thinks fit, may, after recording its reasons for holding such claim or defence to be false or vexatious, make an order for the payment to the object or by the party by whom such claim or defence has been put forward, of cost by way of compensation.”
- 19.
Section 35(2) provides that “No Court shall make any such order for the payment of an amount exceeding three thousand rupees or exceeding the limits of it pecuniary jurisdiction, whichever amount is less.”
- 20.
Mulla, at p. 600.
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Badami, N. (2012). Shifting Sands and Pyrrhic Victories – The Case of India. In: Reimann, M. (eds) Cost and Fee Allocation in Civil Procedure. Ius Gentium: Comparative Perspectives on Law and Justice, vol 11. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-2263-7_13
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