VANDNA BHARGAVA Vs. KAPIL BHARGAVA

JUDGEMENT

(1.) THE short question which needs to be decided in this petition preferred under section 115 of the Code of Civil Procedure, 1908 is whether a legal representative of a plaintiff who has been allowed to sue as an indigent person can be called upon to pay Court fee merely because such legal representative is in a position to pay the Court Tee. The Trial Court has come to the conclusion that such a person i.e. a person seeking to continue a suit which was permitted to be prosecuted under Order XXXIII is bound to pay the Court fee. The learned counsel for the petitioner submits that this is not the intendment of the provisions. The basic argument is that it is the liability of the person who was permitted to sue as indigent person is to be examined. He submits that if this be the position then the heirs cannot be called upon to pay the Court fee.

(2.) A perusal of the various decided cases would support the proposition that on the death of the original plaintiff who has been permitted to prosecute a suit as an indigent person his legal representatives can prosecute the litigation if they are in a position to show that they are also not in a position to pay the Court fee. The preponderance of judicial opinion is in favour of the above proposition. The view of the Allahabad High Court in the case of Smt. Kalawati v. Chandra Prakash AIR 1959 All. 37 is to the effect that once the plaintiff is allowed to sue as an indigent person the legal representative after the death of the plaintiff can continue with the suit without the payment of Court fee and without getting declared that they are indigent persons. The ratio of the decision in Kalawati's (supra) is that right to sue as indigent person is not a distinct and separate right from the right to sue for redress of the wrong.

(3.) 1978 JLJ 666 is to the same effect.