- (1.) N. B. Asthana, J. Respondent No. 3 Smt. Sharda Devi filed Civil Suit No. 205 of 1969, as indigent person, against the petitioner and two other defendants (not made party to this writ petition) for partition and separate possession of her alleged 4/9 share in the property detailed at the foot of the plaint and for the recovery of Rs. 8536-79 as her share of the other alleged joint properties said to have been sold by the defendants. The suit was dismissed on September 30, 1977 with costs on parties, with the direction that the defendant No. 1, petitioner before us, would pay the required amount of court-fee to the stet copy of the decree was ordered to be sent under Order XXXIII. Rule 14, C. P. C. to the Collector, Agra, for realization of the amount of court-fee. Aggrieved by this direction the petitioner has come to this Court under Article 226 of the Constitution with the prayer that the above direction be quashed and that the respondent No. 2, Collector, Agra, be directed by a writ of mandamus not to realize the court-fee from the petitioner in compliance of the above direction.
(2.) NONE of the respondents, although duly served, filed counter affidavit. We have heard the learned counsel for the petitioner Sri Swami Dayal and the learned Standing Counsel. Order XXXIII, Rule 11, C. P. C. lays down the procedure where indigent person fails. It runs as follows: "where the plaintiff fails in the suit or is dispaupered, or where the suit is withdrawn or dismissed," (a) Because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to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. " The provisions of this Rule are mandatory and admits of no exception.
(3.) THE court when it passes a decree dismissing the suit of an indigent person must provide in that decree for payment, by the plaintiff, of the court-fee due to the Government. When the suit of an indigent person fails, he is liable to pay the due amount of court-fee. THEre is nothing in the Code of Civil Procedure to indicate that in case the suit of an indigent person fails the defendant, and not the plaintiff, would be liable to pay the due amount of court-fee. THE learned Standing Counsel did not support the above direction of learned Civil Judge, Agra and frankly conceded that it was not in accordance with law. Sri R. P. Yadav, now reported to be 1st Addl. District and Sessions Judge, Meerut had decided the suit. In giving the direction regarding the recovery of court-fee from the defendant alter dismissing the suit of an indigent person, the learned Civil Judge has shown his utter ignorance of the provisions of Code of Civil Procedure. It is disappointing that even after putting in seven years of service he did not make himself conversant even with the basic provisions of the Code of Civil Procedure.;