JUDGMENT : Sathish Ninan, J. 1. The suit for money was decreed by the trial court. Defendants 1 and 2, and the 3 rd defendant are in appeal in the respective appeals. 2. Defendants 1 and 2 are the owners of a rubber plantation in Survey No.64/3 in Block number 50 of Elikulam village, Meenachil Taluk. On 24.09.2011, the plaintiff and the third respondent entered into an agreement with defendants 1 and 2 for slaughter tapping of the rubber trees in the property and to cut and remove the timber after slaughter tapping. The total consideration payable was Rs. 1,43,00,000/-. On the date of agreement Rs. 50 lakhs was paid towards consideration. The period fixed was till 30.03.2014. According to the plaintiff, a further amount of Rs. 25 lakhs was paid to defendants 1 and 2 subsequently. It is his further case that it was agreed to between the parties that the full consideration need to be paid only before the trees were actually cut and removed. He alleges that, even before slaughter tapping commenced, defendants 1 and 2 obstructed him by demanding payment of the entire consideration. Accordingly the suit was filed for return of Rs. 75 lakhs. 3. Defendants 1 and 2 admitted that an agreement was entered into between the parties on 24.09.2011. They further admitted the receipt of Rs. 50 lakhs on the date of agreement. That the period was up to 30.03.2014 was also admitted. However, they denied the contention that it was agreed that the entire consideration need be paid only after the trees were cut and removed. It was contended that, after entering into the agreement, the plaintiff and the third defendant were doing slaughter tapping till 30.12.2012. The alleged subsequent payment of Rs. 25 lakhs was denied. It was contended that as per the agreement, out of the balance consideration an amount of Rs. 25 lakhs was to be paid on or before 24.03.2012, a further amount of Rs. 20 lakhs on or before 30.12.2013 and the remaining Rs. 14 lakhs to be paid on or before 30.03.2014. The payment of Rs. 25 lakhs within 24.03.2012 was defaulted. When the payment was insisted upon, the plaintiff and the 3 rd defendant left the property by 30.12.2012. 20 lakhs on or before 30.12.2013 and the remaining Rs. 14 lakhs to be paid on or before 30.03.2014. The payment of Rs. 25 lakhs within 24.03.2012 was defaulted. When the payment was insisted upon, the plaintiff and the 3 rd defendant left the property by 30.12.2012. They further contended that the plaintiff and the 3 rd defendant had removed 400 rubber trees from the property and that they had suffered damages to the tune of Rs. 36 lakhs. Accordingly they prayed for dismissal of the suit. 4. The 3 rd defendant supported the plaintiff. 5. The trial court found that there is no evidence to show the payment of Rs. 25 lakhs claimed by the plaintiff. Finding that the contract has been breached, defendants 1 and 2 were directed to return the Rs. 50 lakhs which was admittedly received by them. The suit was filed as an indigent. As per the decree, the 3 rd defendant was made liable for one-half of the court fee payable. 6. Challenging the decree for return of money, defendants 1 and 2 are in appeal in RFA 103 of 2018. Challenging the direction in the decree to recover one- half court fee from the 3 rd defendant he is in appeal in RFA 339 of 2019. There is no appeal by the plaintiff against the refusal of decree for Rs. 25 lakhs. 7. We have heard Sri. P.B. Krishnan, the learned senior counsel for defendants 1 and 2, Sri.Varghese Kuriakose, the learned counsel for the plaintiff and Sri.Baby Mathew, the learned counsel for the third defendant. 8. The points that arise for determination are :- (i) Was the plaintiff entitled to sue as an indigent when admittedly the suit is filed on behalf of the third defendant also and sharing interest with him? (ii) The suit being one filed upon the agreement entered into between the parties, could the suit be maintained without marking the agreement in evidence? (iii) Do the materials on record establish that the plaintiff and the third defendant had done slaughter tapping in the property from 24.09.2011 till 30.12.2012? (iv) Could the 3 rd defendant be made liable for the court fee payable? (iv) Does the decree and judgment of the trial court warrant any interference? 9. (iii) Do the materials on record establish that the plaintiff and the third defendant had done slaughter tapping in the property from 24.09.2011 till 30.12.2012? (iv) Could the 3 rd defendant be made liable for the court fee payable? (iv) Does the decree and judgment of the trial court warrant any interference? 9. The learned senior counsel for the appellant would contend that the trial court ought not have permitted the plaintiff to sue as an indigent since admittedly the contract in question was entered into by him along with the 3 rd defendant and for their joint benefit. Even the suit is claimed to have been instituted for and on behalf of the third defendant also under an agreement between them. Order XXXIII Rule 5(e) of the Code of Civil Procedure provides for rejection of the indigent application where the applicant has entered into any agreement with reference to the subject matter of the suit with any other person who has interest in such subject matter. Such a course should have been resorted to by the trial court, it is argued. 10. We do not think that the argument of the learned counsel needs any attention at this appellate stage. It was open for defendants 1 and 2 to urge the contention and move under Order XXXIII Rule 9 CPC for withdrawal of permission to sue as an indigent on the said ground. However, such a course was not resorted. If such objection was raised and the court had upheld the same, the plaintiff had a remedy to pay court fee and prosecute the suit. Such objection having not been raised at the appropriate time, urging such contention at this stage is of no avail. 11. Now we proceed to discuss on the contention of the appellant-defendant with regard to non- maintainability of the suit for the failure of the plaintiff to have the agreement marked in evidence. The rights and liabilities inter-se stems out of the agreement executed between the parties on 24.09.2011. It is not in dispute that there is a written agreement. The cause of action for the suit is the breach of the agreement. The terms of the agreement could be proved only by production of the agreement(S.92 Evidence Act). The plaint does not set out the entire terms of the agreement including the instalments payable, the dates etc. It is not in dispute that there is a written agreement. The cause of action for the suit is the breach of the agreement. The terms of the agreement could be proved only by production of the agreement(S.92 Evidence Act). The plaint does not set out the entire terms of the agreement including the instalments payable, the dates etc. The defendant on the other-hand has pleaded certain dates with the instalments payable. Therefore, to prove the agreement, the document should have been produced in evidence. However it is not done. 12. The learned counsel for the respondent- plaintiff would argue that, the suit is only for return of the advance amounts paid under an agreement which did not go through and therefore the non-production of the agreement is not of any relevance. Further, unless the defendants prove that they sustained any damages, they are bound to return the amounts; decisions are legion on the point, under Section 74 of the Contract Act, it is argued. 13. We are unable to agree with the learned counsel for the respondent-plaintiff. What were the terms of the contract, at which stage of the contract the breach occurred, what are the consequences to follow, etc. are all relevant factors for consideration. Without  production of the agreement, the above aspects could not be found out. In paragraph 8 of the chief affidavit of DW1 it is sworn to thus: The suit being founded on the agreement and alleging breach of the agreement, the failure to produce the agreement in evidence is fatal. 14. It is the plaintiff's case that he was unable to do slaughter tapping in pursuance of the agreement. Therefore, he claims return of the Rs. 75 lakhs allegedly paid by him (Rs. 50 lakhs paid on 24.09.2011 and the amount at Rs. 25 lakhs paid later). According to defendants 1 and 2, after the payment of Rs. 50 lakhs on 24.09.2011 no further payments were made. Though as per the agreement the next installment of Rs. 25 lakhs was payable on 24.03.2012, without paying the same the plaintiff continued slaughter tapping till 30.12.2012. It is claimed that finally, on the insistence of the defendants to pay the amount, the plaintiff and third defendant left the property on 30.12.2012. They had done slaughter tapping from 24.09.2011 till 30.12.2012. 15. Ext.A1 is the suit notice. It is dated 17.01.2014. It is claimed that finally, on the insistence of the defendants to pay the amount, the plaintiff and third defendant left the property on 30.12.2012. They had done slaughter tapping from 24.09.2011 till 30.12.2012. 15. Ext.A1 is the suit notice. It is dated 17.01.2014. It is very important to note that, till then, ie. for a period of more than 2½ years after the agreement, the plaintiff had no complaint/grievance that he was not permitted to carry out slaughter tapping in the property. While examined as PW1, he would in his cross-examination depose that the property was not given possession of and they were not permitted even to enter the property. Noticeably, there is no such averment in the plaint. In his further cross-examination it is affirmed that there arose disputes with the defendants and on 25.09.2011 the plaintiff and the third defendant were told not to enter the property. The deposition reads thus: - It is to be noticed that 25.09.2011 is the very next day of the agreement(24.09.2011). If after payment of Rs. 50 lakhs on 24.09.2011 they were obstructed on the very next day from even entering into the property, it is difficult to accept that they remained idle and did not take any action for a period of 2½ years. 16. Further, according to the plaint averments, the plaintiff had, subsequent to the agreement, paid a further amount of Rs. 25 lakhs. The plaintiff has in his proof affidavit sworn to that on 24.03.2012 an amount of Rs. 25 lakhs was paid to defendants 1 and 2. It cannot be believed that, even though they were prevented from even entering the property after having paid Rs. 50 lakhs, still they paid a further amount of Rs. 25 lakhs on 24.03.2012 i.e. after a period of six months. The defendant has produced Ext.B3 cheque of the 3 rd defendant dated 24.03.2012, stated to have been handed over by the plaintiff and the 3 rd defendant at the time of entering into the agreement. It represents the second instalment under the agreement. It is claimed that the handing over of the same towards security has been acknowledged in the agreement entered into between the parties. On the evidence and circumstances, it is quite probable that the plaintiff continued slaughter tapping in the property till 30.12.2012 as claimed by defendants 1 and 2. It represents the second instalment under the agreement. It is claimed that the handing over of the same towards security has been acknowledged in the agreement entered into between the parties. On the evidence and circumstances, it is quite probable that the plaintiff continued slaughter tapping in the property till 30.12.2012 as claimed by defendants 1 and 2. The terms of the contract are not before the court. Facts being so, the argument of the plaintiff based on Sections 73 and 74 of the Contract Act is also only to be repelled. 17. The above aspects had not gone into the zone of consideration of the trial court. On appreciation of the rival pleadings and evidence, we find the case of the defendants 1 and 2 to be probable and is liable to be upheld. We do so. 18. The third defendant challenges the decree against him directing realisation of one-half court fee from him. To grant such a decree, the trial court was of the view that, going by the stand of the plaintiff and the third defendant, they are to share the benefits of the decree, and thus cast the liability. 19. The reasoning of the trial court is flawed. The liability to pay court fee is on the plaintiff. Merely because the 3 rd defendant sailed along with the plaintiff does not enable the court to direct him to share the court fee payable. He did not choose to institute the suit for his cause. He cannot be made liable for the court fee. Hence the decree against the third defendant is liable to be set aside and we do so. 20. As per this judgment we are proposing to dismiss the suit. In terms of Order XXXIII Rule 11 of the Code of Civil Procedure when an indigent suit is dismissed, the liability to pay the court fee is on the plaintiff. The defendant who supports the claim of the plaintiff, cannot be made liable for the same. Resultantly, the appeals are allowed. The decree and judgment of the trial court will stand set aside. The suit will stand dismissed. No costs.