- (1.) 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, C. P. C. and directed to pay court-fees on the valuation of the Suit.
(2.) BRIEF facts of the case are that the plaintiff-applicant filed a suit for recovery of a certain sum of money alongwith interest against the defendants, Alongwith 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-tees. The trial court allowed the plaintiff's application and the trial of the Suit proceeded. Subsequently the opposite party No. 1 filed an application (Paper No. 49-C) on 20-1-1992 for withdrawal of the permission granted to the plaintiff to sue as an indingent person on the ground that during the pendency of the Suit a Notional Saving Certificate of Rs. 25,000 deposited by the plaintiff as security in the Nagarpalika, Sasti had matured and the court had vide its order dated 44-1991 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. 49-C) 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. Learned counsel for the applicant has submitted, firstly ; that the trial court has 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 towarhs the security deposit and the remaining Rs. 25,000 to meet the necessities of his family. Secondly, it has been contended that the require ment of law is that the means had to be seen at the time when the Suit was filed and any amount received subsequently by that ought not to be taken into consideration as means for payment of the court-fees. Thirdly, it has bean 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 pendancy of the Suit.
(3.) 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 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 Na tional 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 the trial of the Suit 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 (b) of Rule 9 of Order XXXIII is to be interpreted with the help of the definition '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 grouted. 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 Rustoji Cawas Ji v. General Cotton Mills, reported in AIR 1967 Bom 73, it has been held that how the pauper plaintiff expended the amount can not fall for consideration while considering the application for dispaupering the plaintiff. Similar view has been taken by this Court in the case of Zulfiqar Husain v. State of U. P. , reported in AIR 1981 All 408. 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 proceeding before 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 v. Jagdeo Singh, reported in AIR 1934 All 323, 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 XXX111, 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 realis ed 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 Zulfiqar Husain placing reliance upon a Division Bench decision of our Court in the case of Smt. Kalawati v. Chandra Prakash, reported in AIR 1959 All 37. The Division Bench while considering Rule 11 of Order XXXIII, C. P. C. 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 contention 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 facts 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 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 C. P. C. 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 consider ation 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. Kalawati 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.;