Smt. Guddi Devi and Another vs District Judge and Others

S.P. Srivastava, J.—Feeling aggrieved by an order dated 22.9.1980 passed in revision whereunder while upholding the order of the trial Court dispaupering the Plaintiff, the Revisional Court had set aside the order of the trial Court requiring the requisite Court fee to be paid by the Plaintiff within a month postponing the payment of Court fee till the final decision of the suit, the Defendant Petitioner has approached this Court seeking redress praying or the quashing of the order.

Heard the learned Counsel for the parties.

Perused the record.]

It appears that the trial Court vide its order dated 1,9.3.1979 had dispaupered the Plaintiff and required the requisite Court fee to be paid within a month after getting the report of Munsarim. The aforesaid order of the trial Court was challenged by the Plaintiff in a revision u/s 115 of the Code of Civil Procedure. The contention of the Plaintiff before the Revisional Court was that even after dispaupering the Plaintiff the trial Court could not require them to pay the Court-fee on the plaint during the pendency of the suit but only at the conclusion of the trial. It appears that in support of the aforesaid contention a decision of this Court in the case of Smt. Kalawati Devi v. Chandra Prakash AIR 1959 All 87, was relied upon by the revisionist and on its basis the Revisional Court accepted the contention of the Plaintiff revisionist. Accordingly, setting aside that part of the order which related to the payment of the Court fee by the Plaintiff, it was clarified that though the Plaintiffs had been dispaupered, they have a right to continue the suit and a proper order for payment of Court-fee by one or the other party will be passed according to law at the conclusion of the trial.

The provision contained in Order XXXIII, Rule 11 of the CPC to the following effect:

Procedure where indigent person fails. - Where the Plaintiff fails in the suit or the permission granted to him to sue as an indigent person has been withdrawn, or where the suit is withdrawn or dismissed:

(a) because the summons for the Defendant to appear and answer has not been served upon him in consequence of the failure or the Plaintiff to pay the Court-fee or postal charges (if any) chargeable for such service or to present copies of the plaint or concise statement, or

(b) because the Plaintiff, does not appear when the suit is called on for hearing, the Court shall order the Plaintiff, or any person added as a co-plaintiff to the suit, to pay the Court-fee which would have been paid by the Plaintiff if he had not been permitted to sue as an indigent person.

It is apparent from the above that where the Plaintiff is dispaupered the Court shall order the Plaintiff to pay the Court-fee which would have been paid by the Plaintiff if he had not been permitted to sue as an indigent person. This provision ex-facie appears to be mandatory. Since the Plaintiff is dispaupered in the present case he becomes liable to pay the Court-fee and consequently, no further proceedings can be taken in the suit unless the deficiency in the Court-fee is made good.

It may be noticed that even in the decision in the case of Smt. Kalawati Devi (supra), it has been held that the word Plaintiff as used in Rule 11 should be taken to refer only to the original Plaintiff. It was clarified in that decision that this as used in Rule 11 could not be taken to refer to a co-plaintiff who is added as a party later on after his death. It was further emphasised in the aforesaid decision that it is only the person who has been held to be pauper who could be dispaupered.

It the case in which the aforesaid decision was rendered, the original Plaintiff had died and the question was as to whether his legal representative could be asked to pay the Court-fee. There was no order dispaupering the original Plaintiff. The ratio of the aforesaid decision relied upon by the Revisional Court, it in my opinion, was not at all attracted in the facts and circumstances of the present case and reliance upon the aforesaid decision was totally misplaced.

In any case no such ground had been made out which could justify any interference, while exercising the revisional jurisdiction envisaged u/s 115 of the Code of Civil Procedure, in the order passed by the trial requiring the Plaintiff to pay the Court-fee due on the plaint.

In the aforesaid view of the matter, the writ petition succeeds and the impugned order passed by the Revisional Court dated 22.9.1980 is quashed.

However the parties are directed to bear their own costs.