K YASHODA Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners in I.A. 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.

(2.) Sri P.B. Krishnan, learned counsel 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 O.33 and argued that when it is found that the plaintiffs are indigent persons, that right cannot be fettered by any conditions. O.33 R.8 of the Code of Civil Procedure states as follows:

(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 O.33 R.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. O.33 R.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 R.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 R.10, 11 or R.11A. Thus a perusal of R.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 R.10, 11 and 11A arise. Thus, a perusal of the provisions of O.33 shows that no provision has been made for making the security for the payment of Court lee before the disposal of the suit.