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Judgment
S. Sankarsubban, J.—Petitioners in LA. No. 666/95 in O. S. No. 158/94 of the Subordinate Judge''s Court, Kasaragod are the petitioners in the above Civil Revision Petition. Suit was filed by one Narayana Poojary. He died and subsequently, petitioners were impleaded as additional supplemental plaintiffs. The original plaintiff deposited the 1/ 10th Court-fee. Subsequently, plaintiffs filed I. A. No. 666/95 for prosecuting the case in forma pauperis. Court below found that the petitioners can be allowed to prosecute the suit as indigent persons, but further held that they should furnish adequate security for payment of balance COURT-FEE WHEN CALLED FOR. Thus plaintiffs were directed to furnish adequate security for the balance Court-fee payable. It was further stated that till then, the plaintiffs cannot be allowed to proceed with the matter. Petitioners challenge the above conditions/
Shri P. B. Krishnan, learned qounsel for the petitioners submitted that the Court below had no jurisdiction to impose such a condition. According to him, once the Court finds that the plaintiffs are entitled to prosecute the suit as indigent persons, then no more further conditions can be imposed. Learned counsel brought to my notice the provisions in Order 33 and argued that when it is found that the plaintiffs are indigent persons, that right cannot be fettered by any conditions. Order 33, Rule 8 of the CPC states as follows :
"Where the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit..... "
Order 33, Rule 1 of the CPC states that any suit may be instituted by an indigent person. Explanation defines ''indigent person'' as a person who is not possessed of sufficient means to enable him to pay the Court-fee prescribed by law for the plaint in such suit, or where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree and the subject-matter of the suit. Court, thereafter, is to enquire into as to whether the plaintiffs satisfy the definition. An enquiry was made under Rule 7. The enquiry is to with regard to the fact whether the plaintiffs have got sufficient means to pay the Court-fee. Thereafter, Court has to take a decision. The application can be allowed or dismissed on the grounds mentioned in Order 33, Rule 1 of the Code of Civil Procedure. Once the Court finds that the plaintiffs have no sufficient means to pay the Court-fee, then their application for prosecuting the suit as indigent persons is to be allowed.
3, .The question is whether the Court is justified in imposing a further condition that the plaintiffs should furnish security for the Court-fee. According to me, the condition imposed has no legal sanction and hence it is without jurisdiction. Under Order 33, Rule 10 when an indigent person succeeds in the suit, the amount of Court-fee has to be calculated and the amount shall be recovered by the State Government from any party ordered by the decree to pay the same and shall be a first charge on the subject-matter of the suit. Order 33, Rule 11A deals with the procedure when an indigent person''s suit abates. It is stated there that when the suit abates, then the Court-fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person shall be recoverable by the State Government from the estate of the deceased plaintiff. Under Rule 12, State Government is given the right at any time to apply to the Court to make an order for the payment of Court-fee under Rules 10, 11 or Rule 11 A. Thus a perusal of Rules 10, 11 and 11A makes it clear that the State is entitled to realise the amount payable as Court-fee only after the contingencies mentioned in Rules 10, II and 11A arise. Thus, a perusal of the provisions of Order 33 shows that no provision has been made for making the security for the payment of Court-fee before the disposal of the suit.
A question of similar nature came up for consideration before the Madras High Court in Secretary of State Vs. Thayammal and Another, There, the plaintiffs were allowed to prosecute the suit as indigent persons, Thereafter, they filed an appeal before the Madras High Court and they were allowed to prosecute the appeal as indigent persons. Then the Secretary of State for India in Council through the Collector of Madurai filed an application for directing the appellants to furnish security for payment of Court-fee due by them to the Government in the Lower Court. Dealing with the application, Pandrang Row, J. observed as follows :
"The Court-fee that is due to Government cannot be regarded as the costs incurred by Government either in the Court below or in this Court. Government is not a party in this appeal nor was it a party in the Court below, and even if Court-fee is directed to be paid to the Government, (hat does not convert the Court-fee into costs incurred by a party. I am of opinion that this application is misconceived and incompetent.
Even on the merits I can see very little to justify the application. This is a case in which apparently and ostensibly in the interests of justice a pauper has been permitted to appeal in form a pauperis. It is therefore necessary to see that no encouragement is given to any attempt to stifle the appeal, and it is almost certain that if the prayer in the present application is granted, the appellants would be unable to find security for such a large sum as Rs. 4,500 and the result would be a summary rejection of the appeal. This result would not only be disastrous from the point of view of doingjustice between the parties to the appeal, but disastrous or at least imprudent even from the point of view of the Government revenue. Any chance which the Government may have of recovering the Court-fee due would be lost if the appeal -- is rejected as it will have to be rejected for failure to give security."
The question again came up for consideration before a Division Bench of the Madras High Court in Rachabhathuni Brahman v. State of Madras, AIR 1954 Mad 277 The Bench consisting of Raja-mannar C..T. and Venkatarama Ayyar, J. approved the decision of Pandrang Row, J. in AIR 1937 Mad 267. There, their Lordships set aside the order passed by the learned single Judge of that Court directing the appellant to furnish security for stamp duty payable to the Government as per the decree of the Court below and for the stamp duty payable on the appeal therefrom. Appellant was permitted to file the suit in forma pauperis and also the appeal in forma pauperies.
As held by the Madras High Court in the above decisions imposing a condition to provide security would be virtually scuttling the benefit given to the indigent persons to prosecute the suit or appeal without payment of Court-fee. In the present case also, the plaintiffs are directed to be given security for about Rs. 1,70,000/-which they will not be in a position to give. Thus, virtually the relief granted to them under Order 33 is taken away by the direction imposed by the learned Sub-Judge. Learned Government Pleader submitted that the Court below can invoke its inherent power. That submission cannot be accepted. Inherent power can be used only when there arc no provisions made in the Code of Civil Procedure. So far as the security for costs is concerned, Order 25 deals with the same. That is regarding the costs of the defendant. Here, the inherent power cannot be made use of because Order 33 gives right to the party to prosecute a suit as an indigent person, if he satisfies certain conditions. By means of inherent power an additional condition cannot be incorporated in the
(1) Order 16, Rule 16
(2) Order 21, Rule 26
(3) Order 22, Rule 8
(4) Order 25, Rule 1
(5) Order 32, Rule 6
(6) Order 37, Rule 3
(7) Order 38, Rules 1, 2, & 5
(8) Order 40, Rule 3
(9) Order 41. Rules 5 & 6
(10) Order 41, Rule 10
(11) Order 45. Rules 7 & 10
(12) Order 45, Rule 13
Statute or Rule.
Some of the other provisions in the Code which deal with the security are as follows:
(See table above)
In the above view of the matter, the direction contained in the order of the Court below that the petitioners should furnish security of Rs. 1,70,000/- is set aside, since the Court below has found that the petitioners are indigent persons. Petitioners are allowed to proceed with the suit as indigent persons.
Civil Revision Petition is allowed.