For suing as indigent person prescribed procedure not followed by court.

E.PADMANABHAN,J.

C.M.A.No.771 of 2003 has been preferred under Order XLIII Rule 1 (na) CPC challenging the fair and decretal order dated 11.9.2003 passed in Pauper O.P.NO:(Unnumbered) of 2003 in O.S.No.312 of 1995 on the file of the Subordinate Judge, Sankagiri.

2. The very same appellants also have preferred C.R.P.No.558 of 2003 challenging the judgment and decree dated 24.2.2003 made in O.S.No.312 of 1995 on the file of the Subordinate Judge of Sankagiri dismissing the suit for default on the sole reasoning that the additional court fee has not been paid and also on the basis that the plaintiffs counsel was not prepared to conduct the suit.

3. The very same petitioners also preferred CRP.No.814 of 2003 challenging the order of return dated 27.3.2003 made in unnumbered I.A.,No (Unnumbered)of 2003 in O.S.No.312 of 1995 on the file of the Subordinate Judge of Sankagiri.

4. All the above three matters and connected Civil Miscellaneous Petitions are consolidated since they arise out of one and the same suit between the same parties, besides one order is consequential to the other.

5. Heard Mr.V.K.Muthusamy, learned senior counsel appearing for the appellant in the CMA as well as the petitioners in both the Revision Petitions, Mr.K.Alagirisamy, learned senior counsel appearing for the second respondent in all the matters. The first respondent and respondents 3 to 5 despite service have not chosen to appear. Notice to the 6th respondent was dispensed with at the instance of the appellant/petitioners.

6. For convenience, the parties will be referred as arrayed before the trial court. The suit O.S.No.312 of 1995 on the file of the Subordinate Judge of Sankagiri has been instituted against the defendants 1 to 6 for partition and separate possession of 3/8th share in suit properties including Transport business, lorry spares, cars etc., dividing partnership shares standing in the name of Chellappan and defendants 1 and 2 into 8 equal shares and allot 3/8 share in favour of the plaintiffs, for mesne profits in respect of the first plaintiffs 3/8 share, to crate a charge, to pay Rs.5000/- per month for the maintenance of the first plaintiff, to appoint a receiver, to declare the sale deeds in favour of the third defendant as null and void and to restrain the defendants 1 and 2 from alienating and encumbering the suit property till the disposal of the suit and for other consequential reliefs.

7. The suit property consist of A to E schedules. We are not concerned with the details of the property or sale deeds. There is no dispute as to the relationship between the plaintiffs 1 and 2 as well as defendants 1 and 2. The first plaintiff is the minor son born out of lawful wedlock between the first defendant and second plaintiff. The second defendant is the mother of the first defendant. The second plaintiff is the wife of the first defendant.

8. Pending the suit the plaintiffs also moved I.A.No.772 of 1995 under Order 39 Rule 1 seeking ad-interim orders of injunction restraining the defendants from alienating or encumbering the suit properties. The trial court granted injunction. When the suit was pending the plaintiffs filed Pauper O.P.No.... of 2003 on 29.1.2003 for leave to sue as indigent persons in the very suit in respect of their claim for mesne profits from all suit schedule properties which mesne profits was estimated and the plaintiffs have to pay an additional court fee of Rs.1,32,862.50, consequent to their moving an application for amendment of the plaint which was ordered in I.A.No.605 of 2002 and I.A.897 of 2002. According to the plaintiffs they are not in possession of the properties, they have no income, the monthly maintenance has not been paid, they have no capacity to raise any funds to pay the court fees.

9. The said pauper O.P. was moved under Order XLIII Rule 1 CPC just after amendment of the Plaint including schedules and also claiming substantial sum as mesne profits from various plaint schedule properties. The