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1997 DIGILAW 166 (KER)

Jayaraja Menon v. Rajakrishnan

1997-04-09

P.K.BALASUBRAMANYAN

body1997
Judgment :- Balasubramanyan, J. These revisions are by the same plaintiff in four suits against four dailies in the State for recovery of damages for defamation. The plaintiff filed the four suits O.S.Nos.174 of 1989 to 177 of 1989 with petitions for permission to sue as an indigent person. After the enquiry into the indecency of the plaintiff, he was permitted to sue as an indigent person. The suits were numbered and proceeded with. When they were ultimately posted applications were made by the defendants invoking O. XXXIIIR. 9 of the Code of Civil Procedure submitting that the plaintiff has then such means that he ought not to continue to sue as an indigent person. This was because, the plaintiff who was a Police Officer and who was under suspension earlier had later been reinstated and had retired from service and had come by the retirement benefits and the arrears of salary due to him. Though the amounts were received in the year 1992 the applications for dispaupering the plaintiff were made only in the year 1994. The plaintiff had received a sum of Rs. 2,80,297/- and the court fee payable in all the four suits together was only Rs. 1,14,000/ -. The plaintiff resisted the applications by pointing out that the amounts referred to by the defendants were amounts that were liable to be excluded from computation since the amounts that were received by him were exempted from attachment in execution of a decree as provided in S.60 of the Code of Civil Procedure. He also pleaded that he had to spend the said amounts in connection with the education of his children and the marriage of his daughter and therefore, in any view, he continued to be an indigent person. 2. Though applications were made in all the four suits by the defendants to dispauper the plaintiff, the trial court originally only lookup the application in O.S.175 pf 1989 and held therein that the plaintiff had ceased to be an indigent person and hence he could not continue the suit as an indigent person. The plaintiff filed C.R.P. 2634 of 1994 before this court challenging that order. By order dated 24.10.1996, this court set aside that order and dismissed the application made by the defendants to dispauper the plaintiff. Subsequently a review of that decision was sought for by the first defendant by filing R.P. 395 of 1996. The plaintiff filed C.R.P. 2634 of 1994 before this court challenging that order. By order dated 24.10.1996, this court set aside that order and dismissed the application made by the defendants to dispauper the plaintiff. Subsequently a review of that decision was sought for by the first defendant by filing R.P. 395 of 1996. This court by order dated 9.1.1997 reviewed its earlier order and modified the same. While this court maintained the setting aside of the order of the court below in the application to dispauper the plaintiff, this court remanded that application for a decision along with the applications in the three other connected suits and for a fresh disposal. Thereafter, the court below took up the applications and by the common order impugned in these revisions held that by the receipt of the amounts on retirement, the plaintiff has come by means and that he ought not to continue to sue as an indigent person. Thus, the applications filed by the defendants in the four suits were allowed and the trial court granted the plaintiff a time of one month for the payment of court fee in all the four suits. These orders are challenged in these revisions by the plaintiff. 3. Mr. P.N. Krishnankutty Achan, senior counsel appearing on behalf of the plaintiff contended that the court below was in error in holding that the plaintiff had come by sufficient means so as to disqualify him to continue to sue as an indigent person. He further contended that even if the plaintiff was to be dispaupered in terms of O. XXXIII R.9 of the Code, the court could not call upon the plaintiff to pay the court fee due within the time fixed as it has done or to dismiss or reject the plaint for non-payment of court fee. The court was bound in the light of the specific provisions contained in O. XXXIII R.9 of the Code of Civil Procedure after its amendment in the year 1976, the Court was bound to proceed with the trial of the suit notwithstanding its finding that the plaintiff has ceased to be an indigent person and was bound to collect the court fee due from the plaintiff only after a decision is rendered in the suit or in any event only at the stage of the grant of a decree. He contended that it is not as if there are no provisions in the Code of Civil Procedure providing for recovery of court fee due from a defeated plaintiff who was permitted to sue as an indigent person or a plaintiff who has sued as an indigent person and has obtained a decree in its favour. According to him there was no distinction made under O. XXXIII R.9 of the Code of Civil Procedure between a successful or non successful plaintiff permitted to sue as an indigent person and a plaintiff who has been dispaupered. He relied on O. XXXIII R.11 of the Code of Civil Procedure in support of his submission with pointed reference to the Rule that was obtaining in the States of Kerala and Madras earlier and the one that is now obtaining after the 1976 amendment of the Code of Civil Procedure. Mr. T.R. Govinda Warrier Senior Counsel appearing for the defendants in O.S.175 of 1989 and counsel for the other defendants supporting him contended that the amounts received by the plaintiff from the Government were not exempt from attachment under S.60 of the Code and that this was a case where the plaintiff had come by, pending the suit substantial amounts which would enable him to pay the court fee or in any event it has resulted in his ceasing to be an indigent person. In answer to the second contention Mr. Govinda Warrier submitted that O. XXXIII R.11 of the Code was clear and when a plaintiff is dispaupered under R.9 of O. XXXIII of the Code, the court had ample power to call upon him so pay court fee and on his failure to do so to take other steps contemplated by the Code of Civil Procedure. He referred to Ss.4 & 12 of the Kerala Court Fees and Suits Valuation Act which he submitted were the substantive provisions by which the court fee was collected and which defined the jurisdiction of the court. The contention on behalf of the plaintiff that the amounts received by him from the Government during the pendency of the suits are all exempted from attachment under S.60 of the Code cannot be accepted. The contention on behalf of the plaintiff that the amounts received by him from the Government during the pendency of the suits are all exempted from attachment under S.60 of the Code cannot be accepted. Even if the amounts while in the custody of the Government could be treated as not attachable in view of the relevant provisions in S.60 of the Act, in the light of the decision of the Supreme Court in Union of India v. J. C. Funds & Finance (AIR 1976 SC 1163) and the decision of the Division Bench in Thomas George v. Soudamini - Manakkal (1996 (2) KLT 891) once the amounts have come into the hands of the plaintiff, they will cease to be exempt from attachment. In this case, therefore, the amounts having come into the hands of the plaintiff, he cannot seek the exclusion of those amounts from computation while considering whether he has ceased to be an indigent person. The plea of the plaintiff that he had spent the amounts to discharge his prior liabilities, to meet the educational needs of his children as well as the marriage expenses of the daughter and hence, he cannot be deemed to be a person in the position to pay court fee was rejected by the court below on the ground that he had not produced the relevant accounts in that regard and also on the basis of the decision of the High Court of Madras in Gadigi Muddappa v. G.Rudramma (AIR 1921 Madras 97). On the materials, I am in agreement with the court below that the plea of the plaintiff regarding his spending the entire amounts received is not' sufficiently precise to enable the court to accept the same. I am also in agreement with the view expressed by the Madras High Court in the decision referred to by the court below within it has been laid down that once it had been ascertained that a plaintiff had come by monies and had ceased to be a pauper after the date of the application for permission to sue as an indigent person, that plaintiff has to be dispaupered and the plaintiff would be disentitled to revive his application for permission to sue as an indigent person by contending that the plaintiff had spend that money or had used it for other purposes. This principle has also been adoted by the High Court of Bombay in the decision in Rustamji Cawasji v. General Cotton Mills (AIR 1967 Born. 73). With respect, I do not see any reason to depart from the principle recognised by the High Courts of Madras and Bombay in that regard. I have therefore, to hold in agreement with the court below that the plaintiff had ceased to be an indigent person subsequent to the grant of permission to him to file the suit as an indigent person. 4. The question then is, what is the effect of the plaintiff ceasing to be an indigent person in terms of O. XXXIIIR. 9(b) of the Code of Civil Procedure. O. XXXIIIR.11 of the Code" provides that when a plaintiff is dispaupered the court shall order the plaintiff to pay court fee, which would have been paid, by the plaintiff if he had not been permitted to sue as an indigent person. R.11 of course also contemplates cases where the plaintiff fails in the suit or where the suit is withdrawn or dismissed for default on the part of the plaintiff either to appear to take steps. According to counsel for the plaintiff when the suit is dismissed or it is withdrawn or dismissed for default, the court fee due on the plaint is recovered only in terms of O. XXXIIIR.14 of the Code of Civil Procedure that is by the process of a copy of the decree or the order being forwarded to the Collector who is entitled to recover the amount specified in the order or decree from the person liable for the payment as if it were an arrear of land revenue. According to the plaintiff, once an order is made dispaupering the plaintiff, all that the court can do is to resort to R.14 of O. XXIII and it cannot refuse to proceed with the trial of the suit or the passing of a decree. According to the plaintiff, once an order is made dispaupering the plaintiff, all that the court can do is to resort to R.14 of O. XXIII and it cannot refuse to proceed with the trial of the suit or the passing of a decree. It is contended that there are sufficient provisions in the Code of Civil Procedure to provide for recovery of the court fee due and in the absence of any specific provision precluding the court from proceeding with the suit notwithstanding the order under O. XXXIII R.9 of the Code, the court could not direct the plaintiff to pay court fee on the plaint within a specified time and proceed to deal with the suit on the basis that the court fee has not been paid, and if it has not been paid, to reject it for non-payment of court fee. The court is not obliged, having permitted the plaintiff to originally sue as an indigent person to decide the suit notwithstanding the order dispaupering the plaintiff. Learned counsel in this connection refers to O. XXXIII R.11 as it was available in the State of Kerala as well as in the State of Madras. He particularly refers to the provision in the rule which read "In cases where the plaintiff is dispaupered, the court may, instead of proceeding under the previous paragraph, order the plaintiff to pay the requisite court fee within a time to be fixed by it and in default, dismiss the suit and make an order for the payment of court fee as in the previous paragraph." Under R.11 as it now obtains the above provision is absent and this according to counsel for the plaintiff completely supports the argument of the plaintiff that the court could not order the plaintiff to pay court fee before the commencement of the trial or to deal with the plaint on his failure to pay such court fee on the basis that the plaintiff had not paid the court fee that is due on the plaint. When a question was put to counsel as to what was there in O. XXXIII R.11 of the Code of Civil Procedure to keep out the operation of 0. When a question was put to counsel as to what was there in O. XXXIII R.11 of the Code of Civil Procedure to keep out the operation of 0. VII R.11 of the Code, counsel submitted that in the case of indigent person, O. XXXIII of the Code of Civil Procedure is a complete code and consequently the court could not fall back upon O. VII R.11 of the Code of Civil Procedure. Notwithstanding the difference in R.11 that was available in Kerala and the Rule that is now available in the Code of Civil Procedure as amended in the year 1976,1 am not in a position to agree with learned counsel. The right to file a suit or prosecute a suit as an indigent person is dependant on the fact that the plaintiff who is suing is an indigent person. As observed in M.L. Sethi v. R.P. Kapoor(A1R 1912 SC 2379) every defendant in a suit enjoys an immunity from a suit being filed unless the requisite court fee is paid by the plaintiff and that right is a valuable right. O. XXXIII provides for a contingency where the plaintiff is not in a position to pay the court fee and reflects the policy of the law that a person shall not be deprived of his rights, merely because of his inability to pay the court fee. O. XXXIII of the Code of Civil Procedure does not exempt the plaintiff even if he indigent, from paying the court fee. It only postpones the collection of the court fee. It is therefore, clear that a plaintiff can resort to 0. XXXIII of the Code only if he is an indigent person. Otherwise he has an obligation to pay court fee even at the inception and before his case is tried and decided by the court. O. XXXIIIR. 9 provides for a contingency where the plaintiff though originally permitted to sue as an indigent person, ceases to be an indigent person subsequent to the institution of the suit. The Rule has clearly provided that on the plaintiff ceasing to be an indigent person, the court shall order him to pay the court fee which would have been paid by him if he had not been permitted to sue as an indigent person. The Rule has clearly provided that on the plaintiff ceasing to be an indigent person, the court shall order him to pay the court fee which would have been paid by him if he had not been permitted to sue as an indigent person. It is therefore, clearly a part of an order under O. XXXIII R.9 of the Code of Civil Procedure dispaupering a plaintiff, to direct that plaintiff to pay the court fee that he would have paid, if he had not been originally permitted to sue as an indigent person. Once such an order is made, obviously, the court cannot proceed with the suit unless the court fee is payable on the plaint, is paid by the plaintiff. Once the order directing the payment of court fee under O. XXXIII R.11 of the Code is made on an application under O. XXXIII R.9 of the Code being allowed, the plaintiff is taken out of the mantle of protection afforded to him under O. XXXIII of the Code of Civil Procedure and the court has to act as in the case of any other plaintiff with reference to O. VII R.11 of the Code. In a case where an order is made directing the plaintiff to pay court fee in terms of O. XXXIII R.9 read with R.11 of the Code and the plaintiff does not pay the court fee due on the plaint, obviously, the case would be one which comes under O. VII R.11(c) of the Code of Civil Procedure and the court will be obliged to reject the plaint. The argument based on the omission of the words that were available in the State of Kerala and in the State of Madras from the present R.11 of O. XXXIII of the Code in my view does not advance the case of the plaintiff. Even without those words the scheme of O. XXXIII R.9 and R.11 is clear and as part of that scheme, the court has to order the plaintiff to pay court fee due on the plaint and once he fails to comply with that order, the court shall reject the plaint in terms of O. VII R.11 of the Code of Civil Procedure. 5. Learned counsel for the plaintiff relied on the decision of the Allahabad High courtinZulfigarHusain v. State (AIR 1981 Allahabad 408). 5. Learned counsel for the plaintiff relied on the decision of the Allahabad High courtinZulfigarHusain v. State (AIR 1981 Allahabad 408). A Learned Single Judge of that High Court in that decision has held that a plaintiff who had come into possession of means after the permission granted to him to sue as an indigent person which permission is subsequently withdrawn on his ceasing to be an indigent person cannot be asked to pay the court fee till proceedings for the trial had come to an end. With respect, on the scheme of the Court Fees Act, and the relevant provisions in the Code of Civil Procedure including the scheme of O. XXXIII, I am not in a position to agree with the view that on a plaintiff being dispaupered he cannot be asked to pay the court fee before the court proceeds to trial or deal with the merits of the suit. O. VII R.11 of the Code gives ample power to the court to reject a plaint on which the proper court fee is not paid. On a plaintiff being dispaupered what happens is that the plaint emerges as one where the relief is properly valued but the plaint is written up on the paper insufficiently stamped. The court has therefore, not only the jurisdiction but the duty to call upon the dispaupered plaintiff to pay the fee due on the plaint. On his failure, the court has the obligation to reject the plaint for non-payment of court fee. There is nothing in O. XXXIIIR. 9 or R.11 of the Code which compels the court to postpone the collection of the court fee in the case of a dispaupered plaintiff until the suit itself is tried. The fact that a recovery can be had in terms of 0. XXXIII R.14 of the Code of Civil Procedure does not in any manner affect the power of the court to insist on the plaintiff paying the requisite court fee before proceeding with the suit. This is all the more so in the light of the principle recognised by the Supreme Court in M.L. Sethi referred to earlier and the immunity available to a defendant in the suit referred to therein. 6. In the case on hand therefore the court below was right in directing the plaintiff to pay the court fee due on the four plaints on dispaupering the plaintiff. 6. In the case on hand therefore the court below was right in directing the plaintiff to pay the court fee due on the four plaints on dispaupering the plaintiff. The court be to has granted time of one month to the plaintiff to pay the requisite court fee. Learned counsel for the plaintiff, considering the nature of the suit and the amount of court ft involved, prayed that the plaintiff may atleast be given an extension of time to pay it court fee. Though this prayer is objected to by counsel for the defendants in these case I am inclined to grant an extension of time to the plaintiff. I therefore extend the tin for payment of court fee due on the four plaints till 28.5.1997. The Civil Revision Petitions are thus dismissed subject to the extension of the granted to the plaintiff for payment of court fee due on the four plaints. In the circumstances of the case I make no order as to costs.