Capoor and P.C. Pandit, JJ. - (1.) THIS is an application by the State under order XXXIII, Rule 11 of the Code of Civil Procedure and the contesting Respondent is Smt. Sheela Devi. She instituted a suit in forma pauperies against her husband for the return of articles or their value amounting to Rs. 14,154/ -. The trial court passed a decree for Rs. 3,421/9/ - in her favour. She then appealed in forma pauperis to this Court for recovery of the remaining amount of Rs. 10,732/7/ Against her husband. This appeal was dismissed by a Division Bench of this Court on the 26th April, 1962. In the present application it is pointed out that the Bench omitted to make any order with regard to the recovery of court fee from the Plaintiff Appellant and the prayer is that she should pay an amount of Rs. 1,199/ - as court -fee stamp on the amount of Rs. 10,732/7/ for which amount she had filed for appeal in the High Court.
(2.) MR . Raj Kumar on behalf of Smt. Sheela Devi has contested the application. The provisions of Rule 11 of Order XXXIII are quite clear. Where the Plaintiff fails in the suit, 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 a pauper. Mr. Raj Kumar has pointed out that this rule further provides for certain eventualities, namely, where the suit is withdrawn or dismissed, and he contends that it is only in those eventualities that the Plaintiff ran be obliged to pay the court fee and not if the suit is dismissed on the merits. This contention is clearly untenable and is not supported by any authority. The first part of the rule i. e. "where the Plaintiff fails in the suit" is without any qualification and apparently applies to dismissal on the merits and the other eventualities which are given in Clauses (a) and (b) of this rule appear to have been added merely as a matter of abundant caution so that it may not be argued that if the suit fails on account of default of the Plaintiff such as not paying the postal charges or not appearing when the suit was called for hearing, then the Plaintiff shall not be liable to pay the court fee which would have been paid by him if he had not been permitted to sue as a pauper. In the circumstances the application is allowed and we order that the Plaintiff -Appellant shall be liable to pay the court the on the amount of Rs. 10,732/7/ - for which she had filed an appeal in this Court. There will, however, be no order as to costs of this application.;