SHIAM SUNDER LAL Vs. MTSAVITRI KUNWAR

JUDGEMENT

(1.) The only point raised in this appeal is whether the plaintiffs not having paid the costs incurred by the Government in opposing an application made by them to sue in forma pauperis were entitled to maintain the present suit.

(2.) There is no doubt that before filing the present suit the plaintiffs did not pay the costs of the Government or of the opposite party in opposing their application to sue in forma pauperis. The learned District Judge who decided the case in the lower appellate Court has held that the provisions of Order 33, Rule 15, Civil P.C., are mandatory and inasmuch as the plaintiffs had failed to pay the costs incurred by the Government or the opposite party the suit ought to have been dismissed. The learned District Judge felt himself bound in this matter to follow the statement of the law contained in the judgment of a Bench of this Court in a case reported in Mahadeo Sahai V/s. Secy. of State 1932 All. 312. In the course of that judgment their Lordships who decided the case expressed their view that if the provisions of Order 33, Rule 15 are not strictly complied with then the suit should be dismissed when the plaint is filed by the plaintiff who has failed to pay the costs of the Government or of the opposite party in opposing his application to sue in forma pauperis. This expression of their view of the law by their Lordships who decided this case is clearly obiter.

(3.) We have heard counsel for the appellants and for the respondents. There is clearly a difference of opinion in this Court as to what the law is upon this question. In view of this difference of opinion and in view of the obiter dicta of a Bench of this Court in the case already referred to and further of the general importance of the question raised, we are of opinion that it ought to be authoritatively decided by a larger Bench. In the circumstances we direct that this case be laid before the Hon ble Chief Justice for the constitution of a Full Bench for the decision of the question. Thom, J.