S.P. Srivastava, J. - (1.) - 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 for the quashing of the order.
(2.) Heard the learned counsel for the parties. [Perused the record.] It appears that the trial Court vide its order dated 19.3.1979 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 under Section 115 of the Civil Procedure Code. 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 Allahabad 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.
(3.) The provision contained in Order 33, Rule 11 of the Civil Procedure Code 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 - Where the plaintiff fails in the suit or the permission granted to him to sue as an indigent person has been withdrawn, or where the suit is withdrawn or dismissed (a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay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.;