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Madhya Pradesh High Court · body

2000 DIGILAW 364 (MP)

ANIL KUMAR SINHA v. STATE BANK OF INDIA

2000-04-06

DIPAK MISRA

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DIPAK MISRA,J. ( 1 ) INVOKING the revisional jurisdiction of this Court under Section 115 of the Code of Civil Procedure, the plaintiff/petitioner has called in question the sustainability of the order dated 30th October, 1998 passed in M. J. C. (Civil) No. 3/97 passed by the First additional District Judge, Ambikapur. ( 2 ) SHORN of unnecessary details, the facts are that, petitioner as plaintiff instituted a Civil suit and filed an application to sue as an indigent person under Order 33, Rule 14 of the code of Civil Procedure. After the said application was filed, the learned trial Judge directed an enquiry to be caused by the agency of the State and by order dated 5. 10. 1998 his application to sue as an indigent person was dismissed. The Court below after dismissing the said application directed the petitioner to pay the Court fees of Rs. 81,800/- on the plaint. Time was granted till 27-10-1998. As the petitioner could not pay the Court fees, further adjournments were granted to comply with the order and eventually by order dated 30th October, 1998 the Court dismissed the suit for non-payment of the Court fees and directed the Collector, Sarguja to take appropriate action under Order 33, Rule 14 of the code of Civil Procedure. The said direction is the cause of grievance of the revisionist. ( 3 ) I have heard Mr. Sunil Sinha, learned counsel for the petitioner and Shri R. S. Jha, learned Dy. Advocate General for the State. Mr. Sinha has contended that the order passed by the Court below manifests jurisdictional error and deserves to be lanceted in exercise of revisional jurisdiction. ( 4 ) MR. JHA, per-contra, has supported the order passed by the Court below. ( 5 ) TO appreciate the rivel submissions raised at the Bar, it is apposite to refer the order 33, Rule 14 which reads as under-"recovery of amount of Court-fees-where an order is made under Rule 10, rule 11, Rule 11a, the Court shall forthwith cause a copy of the decree or order to be forwarded to the Collector, who may without prejudice to any other mode of recovery, recover the amount of Court-fees specified therein from the person or property liable for the payment as if it were an arrear of land revenue. " ( 6 ) AT this juncture, it is appropriate to refer to Rule 10, Rule 11 and Rule 11a of the code of Civil Procedure. Rule 10 reads as under:-"costs where pauper succeeds -where the plaintiff succeeds in the suit, the Court shall calculate the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper, such amount shall be recoverable 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. "rule 11 is as under:-"procedure where pauper fails -where the plaintiff fails in the suit or is dis-paupered, 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-fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person. 'rule 11a stipulates as under :-"procedure where pauper suit abates-Where the suit abates by reason on the death of the plaintiff or of any person added as a co-plaintiff, the Court shall order that the amount of 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. ( 7 ) ON a fair and objective reading of the aforesaid provisions, it is graphically clear that in the instant case, the concept of Rule 14 is not attracted inasmuch as the petitioner neither had succeeded in the suit nor he had withdrawn the suit. It is worth noting that the suit had also not abated. In absence of any of the contingencies occurring, I am of the considered opinion that Order 33, Rule 14 is not attracted. It is worth noting that the suit had also not abated. In absence of any of the contingencies occurring, I am of the considered opinion that Order 33, Rule 14 is not attracted. In this context, I am profitably refer to a Division Bench decision rendered in the case of State of Mysore v. Dattatraya narasingrao Udipi, wherein the suit brought in forma pauperis was dismissed and the next friend was ordered to pay the Court fees. There was an appeal in forma pauperis and the same was also dismissed and the next friend was ordered to pay the Court fees of the appeal. The Government recovered the said sums of court fees from the next friend by revenue process treating them as arrears of land revenue. The Court addressed itself to the question whether order 33, Rule 14 was applicable to the fact of the case and eventually held as under :-rule 14 would be attracted only to orders made under Rule 10, Rule 11 or rule 11a of Order 33 of the Code and would not be attracted to an order made under Section 35, Civil Procedure Code. Rule 11 of Order 33, Civil Procedure code empowers the Court to make an order only against a plaintiff or only against a co-plaintiff to pay the Court-fees. It does not empower the Court to make an order for such payment against the next friend of the plaintiff. Such an order, can be made only under Section 35, Civil Procedure Code under which an order for payment of Court-fees is an order for payment of costs, and an order for costs can be made against anybody including the next friend of the minor plaintiff. The order in the instant case not being against an order made under Rule 10, or Rule 11 or Rule 11a of Order 33, the provisions of Rule 14 would not apply. That being so, the Government could not enforce the order for payment of Court-fees by taking recourse to revenue processes. " ( 8 ) I am in respectful agreement with the aforesaid view as the fact situation clearly expresses that no order has been passed under which would come within the ambit and sweep of Order 33, Rule 14. Hence, it is held that the impugned order is unsustainable. " ( 8 ) I am in respectful agreement with the aforesaid view as the fact situation clearly expresses that no order has been passed under which would come within the ambit and sweep of Order 33, Rule 14. Hence, it is held that the impugned order is unsustainable. ( 9 ) IN view of my preceding analysis, the civil Revision succeeds and the impugned order is set aside. However, in the facts and peculiar circumstances of the case, there shall be no order as to costs. Revision allowed. .