R JAYARAJA MENON Vs. RAJAKRISHNAN

JUDGEMENT

(1.) 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 OS Nos. 174 of 1989 to 177 of 1989 with petitions for permission to sue as an indigent person. After the enquiry into the indigency 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.33 R.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 took up the application in OS 175 of 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 CRP 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.33 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.33 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.33 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.33 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.33 R.11 of the Code was clear and when a plaintiff is dispaupered under R.9 of O.33 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 S.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. 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 And 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 Mad. 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 adopted by the High Court of Bombay in the decision in Rustomji Cawasji v. General Cotton Mills (AIR 1967 Bom. 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.