Brij Raj Singh vs Nagar Palika and Others

A.K. Banerji, J.—This revision by the Plaintiff-applicant is directed against the order dated 9.4.1993 passed by the Additional Civil Judge, Basti by which the said court dispaupered the Plaintiff-applicant Under Order XXXIII, Rule 9, CPC and directed to pay court-fees on the valuation of the suit.

Brief facts of the case are that the Plaintiff-applicant filled a suit for recovery of a certain sum of money along with interest against the Defendants. Along with the suit, an application for permission to file the suit in forma pauperis was filed by the Plaintiff on the ground that the amount of court-fees payable on the valuation of the suit given in the plaint was over Rs. 50,000 and the Plaintiff did not have the means to pay the court-fees. The trial court allowed the Plaintiffs application and the trial of the suit proceeded. Subsequently, the opposite party No. 1 filed an application (Paper No. 49C) on 20.1.1992 for withdrawal of the permission granted to the Plaintiff to sue as an indigent person on the ground that during the pendency of the suit, a National Saving Certificate of Rs. 25,000 deposited by the Plaintiff as security in the Nagarpalika, Basti had matured and the court had vide its Order dated 4.1.1991 directed the Plaintiff to receive the said amount. The Plaintiff-applicant filed objections to the said application. Upon hearing learned Counsel for the parties, the trial court vide its Order dated 9.4.1993 allowed the Defendants'' application (paper No. 49C) and withdrew the permission granted to the Plaintiff to continue the suit as a pauper and directed the Plaintiff to deposit the entire court-fees by 11.5.1993. Aggrieved against the aforesaid order, the Plaintiff-applicant has filed the present revision before this Court.

I have heard learned Counsel for the parties and have perused the record of the civil revision. With the consent of learned Counsel for the parties, the revision is being finally decided at the admission stage itself.

Learfted counsel for the applicant has submitted, firstly, that the trial court had exceeded its jurisdiction in holding that the plaintiff had acquired means for paying the court-fees as the Plaintiff had re-invested Rs. 25,000 towards the security deposit and the remaining Rs. 25,000 to meet the necessities of his family. Secondly, it has been contended that the requirement of law is that the means had to be seen at the time when the suit was filed and any amount received subsequently by the Plaintiff ought not to be taken into consideration as means for payment of the court-fees. Thirdly, it has been contended that even after withdrawing the permission granted to the Plaintiff to continue the suit as a pauper, the court could not direct him to deposit the court-fees during the pendency of the suit.

So far as the first submission made by learned Counsel for the applicant is concerned, the trial court gave a finding that at the time when the permission was granted to the Plaintiff to file the suit as an indigent person, it was found that the Plaintiff had property worth only Rs. 36,000 whereas the court-fee payable was Rs. 5,600 and, therefore, permission was granted to file the suit as an indigent person. However, subsequently on maturing of the National Saving Certificate deposited by the Plaintiff, it was found that the Plaintiff has earned interest of Rs. 25,000 and, therefore, had means to pay the court-fees. This finding is essentially a finding of fact. Besides, for determining the question of means what has to be seen is whether the Plaintiff had acquired certain funds from which he could pay the court-fees. It is not material that the amount which was received by the Plaintiff during (he trial of the suit or has since been expended by the Plaintiff.

So far as the second submission is concerned, I do not find any force in the same either. It is well settled that the word means'' in clause of Rule 9 of Order XXXIII is to be interpreted with the help of the definition of ''indigent person''. Here, the meaning of the word means'' will be something which is acquired or which has come to the possession of the indigent person after granting of his petition for leave to sue in forma pauperis and not what was already existing before the application was granted. In the present case, as noted above, the Plaintiff admittedly did come in possession of the means after he had been given leave to sue in forma pauperis. It is not relevant whether the disbursement of the money which has come to the hands of the Plaintiff has been expended for other necessities. In the case of Rustamji Cawasji and Others Vs. General Cotton Mills Ltd. and Others, , it has been held that how the pauper Plaintiff expended the amount cannot fall for consideration while considering the application for dispaupering the Plaintiff. Similar view has been taken by this Court in the case of Zulfiqar Hussain Vs. State of U.P., . Learned Counsel for the applicant has, however, supported his submission so far as the second contention is concerned by placing reliance upon the decision of this Court in the case of Zulfiqar Husain (supra) and has contended that the Plaintiff cannot be asked to pay court-fees till the proceedings beibre the trial court have come to an end. I have perused the said decision and I find that the same supports the contention of learned Counsel for the Plaintiff-applicant. However, it appears that an earlier single Judge decision of this Court in the case of Rajdeo Singh Vs. Jagdeo Singh, , was not brought to the notice of the learned single Judge who decided the case of Zulfiqar Husain (supra). It has been held by the learned single Judge in the case of Rajdeo Singh (supra) that an order dispaupering the Plaintiff operates retrospectively in respect of payment of court-fees. In the said case also, the Plaintiff was declared a pauper but subsequently an application Under Order XXXIII, Rule 9 was filed to dispauper the Plaintiff. This application was allowed and the trial court directed the Plaintiff to pay the court-fees by a certain date. The relevant portion of the judgment is quoted below:

The last ground argued was that an order dispaupering the Plaintiff cannot operate retrospectively in respect of payment of court-fees and the court-fees could be realised from the Plaintiff at the time of passing the decree. This argument is said to be founded on a Madras ruling. But it appears to me that Rule 11 of Order XXXIII is conclusive on the point. This rule states that if a Plaintiff Is dispaupered, the court shall order the Plaintiff to pay the court-fees. The Court, therefore, has made a correct order to that effect.

As there is a conflict between the views of two learned single Judges, as noticed above, I would have normally referred this matter for being considered by a larger Bench. However, I find that the learned single Judge decided the case of Zuljiqar Husain placing reliance upon a Division Bench decision of our Court in the case of Smt. Kalawati Devi Vs. Chandra Prakash and Others, . The Division Bench while considering Rule 11 of Order XXXIII, CPC had observed that there is nothing in the rule to indicate in specific terms the stage when the order for payment of court-fees while dispaupering the Plaintiff is to be passed. In that connection, it has observed as follows:

...It appears to be fair conclusion from the context in which the contingency of the Plaintiff being dispaupered is mentioned that the order for the payment of court-fee on the happening of that contingency must also relate to the stage when the proceedings had come to an end and not to pending stage of the suit.

Learned Counsel for the Defendant-opposite parties, however, tried to distinguish the Division Bench decision on the ground that in the (acts of the said case, the Plaintiff who was permitted to institute the suit in forma pauperis expired and substituted by his heir who also mentioned in the application that she was also a pauper. On inquiry, it was found that the heir had means to pay the court-fees and consequently an order Under Order XXXIII, Rule 9, CPC was passed. Learned Counsel for the Defendant-opposite parties contends that in the present case, the said contingency has not arisen as the Plaintiff was alive and the question of payment of the court-fees by the heir did not arise. It is true that the facts in the said case were not identical with the facts of the case at hand. However, observations by the Division Bench have been made on a consideration of Rule 11 of Order XXXIII which is attracted in the facts of the present case at hand. In view of the decision of the Division Bench in the case of Smt. Kalawali v. Chandra Prakash (supra), the third submission of learned Counsel for the applicant prevails. It is, therefore, held that the court-fees shall be paid by the Plaintiff-applicant after the proceedings terminate before the trial court and the Plaintiff-applicant cannot be called to pay the court-fees during the trial of the suit.

As a result, this revision is allowed in part and the order dated 9.4.1993 passed by the Additional Civil Judge, Basti is modified only to this extent that the Plaintiff-applicant will not be required to pay the court-fees till the proceedings before the trial court comes to an end. In the facts and circumstances of the case, the parties shall bear their own costs of this revision.