Bava Sahib Miyan vs Abdul Ghani Sahib and Others

Madhavan Nair, J.—In this case the plaintiff-appellant sued for the recovery of possession of certain trust properties. He valued the suit at

Rs. 3,030 but objections being taken by the defendants to the valuation an issue was raised on the point and it was found that the properties were

worth Rs. .14,000. When he first instituted the suit he had paid Court-fee on Rs. 3,030 but when it was found that the properties were valued at

Rs. 14,000 he was asked to pay additional Court-fee on the, 18th January, 1926. This order was passed on the 23rd December, 1925. As the

appellant was not able to pay the Court-fee as ordered on the 18th January, 1926, he put in an application asking the Court to allow him to

continue the suit as pauper. This application was opposed on two grounds. It was argued that the suit having been filed after the payment, of

Court-fee it was not open to the appellant to continue it as pauper. It was also argued that the appellant not having paid the Court-fee on the 18th

January, 1926, as directed, the plaint should have been considered to have been rejected under Order 7, Rule 11(6) and (c), CPC and that there

was no plaint which could be proceeded with by the appellant as a pauper. Both these arguments were accepted by the learned Subordinate Judge

and his petition was rejected. In this appeal, it is contended that the Lower Court is wrong on both'' the points.

It has been held in a series of decisions under the old Code that it is open to a party who had filed a suit paying Court-fee to continue it as a

pauper. In this Court it was held in Subba Rao v. Venkataratnam ILR (1929) Mad. 43 : 57 M.L.J. 677 following these decisions that under the

new Code also the plaintiff may be allowed to continue the suit as a pauper though when he instituted he had paid Court-fee on it. The appellant

relies on this decision in support of his contention that the plaintiff should be allowed to prosecute the suit as pauper.

On behalf of the respondent it is contended that this decision should not be accepted as laying down the correct law inasmuch as it does not

appear from the judgment that the learned Judges have considered the alteration in the wording of Order 33, Rule 1 of the new Code. Under the

old Code in Section 401, which corresponds to Order 33, Rule 1 the word used was ""brought"" instead of the word ""instituted"" used in the present

Code in Order 33, Rule 1. Section 401 in the old Code ran as follows:

Subject to the following provisions any slut may be brought by a pauper.

Order 33, Rule 1 says:

Subject to the following provisions any suit may be instituted by a, pauper.

It is argued that since the word ""instituted"" is substituted for the word ""brought"" the legislature intended that permission to sue as pauper must be

asked for at the time when the suit was instituted and it could not be granted after the suit was filed on payment of Court-fee. We do not think that

the legislature intended to introduce any alteration in the law by the substitution of the word ""instituted"" in the place of the word ""brought"". The rule

only means that the pauper must have instituted the suit and not that the plaintiff should have been a pauper, at the time when he filed the suit.

Though the alteration in the language has not been specifically referred to in Kolluri Subbarao Vs. Kolluri Venkataratnam and Others, the law laid

down in that decision may be accepted as the correct law. In our opinion therefore it is open to the appellant to ask the Court to allow him to

continue the suit as pauper.

The next point is whether the plaintiff not having paid the Court-fee on the 18th January, 1926, as directed by the Court, the plaint should be

considered to stand rejected. The learned Judge held that the plaint should be considered to be rejected on the strength of the Privy Council

decision reported in AIR 1921 80 (Privy Council) But that case is clearly distinguishable from the present one having regard to its facts. In that

case the appellant was asked on the 18th December, 1914, to give security for costs within two months from that date. Security given on the 17th

February, 1915, being rejected as insufficient the appellant filed a petition on the same day for three months'' further time; this petition came before

the Court on the 18th February, and it was refused. Under Order 41, Rule 10(2) of the CPC ""Where such security is not furnished within such

time as the Court orders the Court shall reject the appeal"". The security not having been given the result was that the appeal stood rejected. On the

22nd February the respondent filed an application for taxed costs and praying that the appeal may be dismissed. Upon this for the first time the

appellant sought permission to proceed in forma pauperis and an application for the. same was filed on the 23rd March. The question was whether

the permission asked for should be granted or not. The High Court of Calcutta declined to grant the permission and this order was confirmed by

the Privy Council. Now, their Lordships of the Privy Council, said:

The High Court at Calcutta rightly conceived itself precluded from entertaining the appellant''s application to be allowed to continue her appeal in

forma pauperis; since to grant her application at that stage would in effect have been to keep alive an appeal which they were, by reason of her

default in the matters of security, bound to reject.

From these facts it is obvious that the Privy Council decision cannot be applied to the facts of the present case. The appeal had already stood

rejected in AIR 1921 80 (Privy Council) when the application asking for permission to continue the suit as pauper was made by the petitioner;

whereas in the present case the suit had not been rejected nor could it have been rejected before the 18th January, 1926, by which date the

plaintiff was asked to pay additional Court-fee and on the 18th, he made his application for permission to sue as a pauper. We are of opinion

therefore that the decision of the learned judge on this point also cannot be upheld.

This appeal was filed by the appellant as a pauper and enquiry was made by the Lower Court at the instance of this Court after giving notice to

the respondent and the Government Pleader regarding the pauperism of the appellant, and it was found that he was a pauper and permission was

therefore granted to him to prosecute the appeal as a pauper. In these circumstances we do not think it is necessary now to hold a fresh enquiry

whether the appellant is a pauper or not; and further, the respondent under Order 33, Rule 9 has a right to dispauper the petitioner if he thinks he

can make out a case.

As we differ from the opinion of the learned Judge on both the points on which he has dismissed the application we set aside the decision of the

Lower Court and give permission to the plaintiff to continue the suit as pauper. The case will be restored to file by the learned Subordinate Judge

and he will proceed with it in due course of law. No Court-fee is payable to Government. The costs of this appeal will abide the result.

Jackson, J.

I agree. The word ""instituted"" in Order 33, Rule 1, Civil Procedure Code, does not emphasize that the pauper must take action only at the

beginning of the proceedings but rather the pauper must be the institutor or the founder of the, suit.