The pauper plaintiff is not exempted from liability for day costs, and the court has the power to make orders regarding the payment of costs as a condition precedent to the further hearing of the suit.

Krishnaswami Ayyangar, J.

1. This is an appeal against the order of the Subordinate Judge of Dindigul setting aside the decree passed by the District Munsif of Periyakulam dismissing the suit of the appellant on the ground that she had failed and neglected to perform a condition precedent on the performance of which she was granted an adjournment of the suit.

2. The facts are these. The first respondent filed the suit out of which the present appeal has arisen for a declaration that the decree and subsequent proceedings in O.S. No. 156 of 1930 on the file of the District Munsifs Court, Periyakulam, are void and not binding on her and for recovery of possession of certain immovable properties together with mesne profits. She obtained leave to file the suit in forma pauperis. The defendants contested the suit and issues were framed on the 20th August, 1937 embodying the questions in dispute. The trial was fixed for the 12th October, 1937. On that day the plaintiff was not ready and the suit was adjourned to the 24th November, 1937. The plaintiff was again unready and the suit had again to be adjourned to the 21 st January, 1938. On the 21st January, 1938 the plaintiff was once again not ready and the Court was obliged to adjourn the suit to the 8th February, 1938. On that day it appeared that the plaintiff was again not ready and she prayed for a further adjournment of the suit. The adjournment was granted but the plaintiff was directed as a condition precedent to pay two sets of day costs of Rs. 5 each, the idea being that the day costs should be paid to the contesting defendants on or before the adjourned date. Subject to the said condition the suit was adjourned to the 17th February, 1938. Neither on that day nor on any day previous did the plaintiff pay the costs ordered and the District Munsif therefore dismissed the suit. An appeal was preferred to the Subordinate Judge of Dindigul who reversed the decree of the District Munsif on the ground that as the appellant was a pauper she should not have been asked to pay the day costs and that her suit ought not to have been dismissed for non-payment of the same. For this view the learned Judge relied upon the decision of the Bombay High Court reported in Ambaji v. Hanmantrao I.L.R.(1922)Bom. 104.

3. The only relevant provision of the Code of Civil Procedure on the point is that contained in Order 33, Rule 8 which says:

Where the application (application for leave to sue as a pauper) is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court fee (other than fee payable for service of process) in respect of any petition, appointment of a pleader or other proceeding connected with the suit.

4. The meaning of the rule is clear that when permission is given to a party to sue as a pauper he gets immunity from payment of the court fee on the plaint and also on any petition, appointment of a pleader, or other proceeding connected with the suit. The pauper plaintiff is not excused from payment of the fees payable for service of process nor is there anything in the language of the rule to warrant the idea that the pauper plaintiff is exempted from liability for the day costs, if and when the court directs that the same should be paid. The decision of the Bombay High Court in the case cited appears to lay down the proposition that once a person is found to be a pauper and allowed to sue as such the Court has no right to direct the pauper to pay the costs in cash. The Court considered that such an order was wholly improper. With very great respect I am unable to follow this decision. The learned Judges have not taken into consideration the effect of the language employed in Order 33, Rule 8 Civil Procedure Code in coming to their conclusion. If the language of the rule is considered it will be seen th