D. Rajendran vs A. Dorairaj Chettiar and 14 others

Raju, J.—The above appeal has been filed against the order dated 27-12-1982 in an unnumbered Original Petition of 1982 (C.F.R. No.

3107 of 1982) on the file of the Subordinate Judge of Udumalpet whereunder the petition dated 16-11-1982 filed by the appellant herein under

O.33, R.1, C.P.C. for a declaration of the appellant as an indigent person and consequent permission to continue the suit in such capacity since he

was not able to pay the deficit court fee of Rs. 23.250/50 due on the plaint in O.S. No. 478 of 1979 came to be rejected. The relevant and

necessary facts are beyond controversy. The appellant filed O.S. No.478 of 1979 before the Court below for partition and separate possession of

the suit A and B schedule properties into four equal shares and for allotment of one such share to him. The court fee examiner in his check slip

appears to have pointed out that the appellant should pay court fee under S.37(4) read with S.40 of Court Fees Act and consequently should pay

court fee of Rs. 23,250,50. On the said basis, the Court below passed an order dated 10-12-1980 in check slip No. 638/XXI/N Diary No.8 that

the appellant was liable to pay court fee of Rs. 23,250.50.

Aggrieved against the same, the appellant filed C.R.P. No. 1223 of 1981 on The tile of this court and while dismissing the said revision petition,

a learned single Judge of this court granted time for payment of court fee ordered to be payable till 31-1-1981 The appellant appears to have

pursued the matter by means of a SLP before the Supreme Court of India and the Supreme Court also rejected the Special Leave Petition. The

Supreme Court does not appear to have granted any further time for the remittance of the court the resultant position being that the court fee, as

directed to be paid on or before 31-1-1981 by this court, was not paid by the appellant. Instead, on 16-11-1982 the petition under O.33, R.1,

C.P.C., as referred to already, came to be filed.

The appellant at the time of the institution of the suit paid court fee of Rs. 200 and after failing in his attempt before this court and the Supreme

Court filed a petition under O.33, R.1, C.P.C. for leave to continue the suit as an indigent person. The said petition was opposed by the

respondent. After considering the respective submissions of the parties, the court below rejected the petition on the ground that the requisite court

fee was not paid within the time fixed by the court inspite of sufficient time having been given by the court below as well as this court. The court

below also was not inclined to agree with the appellant on account of long interval of time between the expiry of the time fixed for payment of the

deficit court fee and the date of the application. Hence the above appeal.

Learned counsel appearing for the appellant contended that in law it was open to the appellant to continue a suit originally filed in the normal and

ordinary manner by payment of court fee by invoking the provisions of O.33, R.1, C.P.C. and that the court below committed a grave error in

rejecting the petition filed without even having it numbered and considering the same on the merits of the claim of the appellant as well as his

entitlement In support of the said submission, learned counsel relied upon the decision reported in Joseph v. Varadarajan 82 L.W, 535=1969 (11)

M.L.J. 234. Learned counsel for the respondents relied upon the decision reported in Selina Sheehan Vs. Hafez Mohammad Fateh Nashib, and

opposed the claim of the appellant and justified the reasoning of the Court below in rejecting the petition.

After a careful consideration of the submissions of the learned counsel on either side and the relevant case laws made available before me, I am

not persuaded to accept the plea by the learned counsel for the appellant. In my view, the course adopted by the court below and its conclusions

call for no interference as they do not suffer from any infirmity or irregularity either of law or of any vital facts It is no doubt by now a well accepted

proposition of law that it is competent to permit a suit not originally instituted in forma pauperis to be continued in forma pauperis. If, therefore,

immediately after the direction for payment of excess court fee or additional court fee due on the plaint was issued, the appellant moved the court

below by means of a petition under O.33, R.1, C.P.C., the position would have been entirely different, Equally the position would have been

different if immediately after the revision petition was dismissed by a learned single Judge of this court and before the expiry of the time granted to

pay court fee the petition under O.33 R.1 C.P.C. has been filed invoking leave under the said provision. On the other hand, what was done in this

case was that the time granted by this Court was allowed to lapse without complying with the directions contained therein Though the Supreme

Court was moved, no further extension of time seems to have been sought for and obtained. In such a situation, the provision of O.7, R.11, C.P.C.

automatically comes into operation. The relevant portion of the said provision is as follows:--

Rejection of plaint:--The plaint shall be rejected in the following cases;--

(a) xx xx xx xx

(b) where the relief claimed is under valued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the

court. Tails to do so;

(c) where the relief claimed is properly valued but the plaint is written on paper insufficiently Stamped, and the plaintiff does not make good the

deficiency within the time, if any, granted by the court;

(d) xx xx xx zx

Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless

the court, for reasons to be recorded. Its satisfied that the plaintiff was prevented by any cause of an exceptional nature from correction the

valuation or supplying the requisite stamp-papers, as the case may be, within the lima fixed by the court and that refusal to extend such time would

cause grave injustice to the plaintiff.

Indisputably, there was no further extension of time obtained by the appellant to make good the deficient court fee.

The decision reported in Joseph v. Varadarajan 82 L.W. 535=1969-11-M.L.J. 234, in my considered view, will not be of any assistance in

deciding the point as now for my consideration. A division bench of the Calcutta High Court in the decision reported in Selina Sheehan Vs. Hafez

Mohammad Fateh Nashib, had occasion to construe the words ""properly valued"" in O.7, R.11(c), C.P.C. and the said court held that those words

are sufficiently wide to cover even a case where a proper valuation has been arrived at by the court after investigation in the course of the suit itself

as much as where the proper valuation has been stated by the plaintiff himself. The said reasoning not only sounds to be proper but very much

acceptable. In the decision reported in Joseph v. Varadarajan 82 L.W. 535=1969-11-M.L.J. 234, the impact or O.7, R.11, C.P.C. was never

under consideration.

The decision of a Division Bench of this court reported in Bava Sahib v. Abdul Ghani 38 L.W. 725=A.I.R. 1933 Mad 498 will help directly to

decide the issue now raised before this court. The learned Judges of the division bench, while holding that even under the new CPC (C.P.C. 1908)

as under the old Code, the plaintiff may be allowed to continue the suit as a pauper though when he instituted it he had paid court fee on it, held

that the application for leave to continue the proceedings as pauper having been made at a time before the plaint could be rejected was

maintainable and should be considered on merits. On that view, the division bench in that case set aside the order of the lower court and gave

permission to the plaintiff therein. In coming to such a conclusion, the division bench had no occasion to notice and consider in detail a decision of

the Privy Council reported in AIR 1921 80 (Privy Council) and while granting relief to the plaintiff in the case before the division bench, the said

decision of the Privy Council was distinguished The point of distinction made by the division bench may be quoted in their very words:

The next point is whether the plaintiff not having paid the court-fee on 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 Counsel decision reported

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

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

February and it was refused. Under O.41, R.10(2), C.P.C.:

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 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 pauperics and

application for the same was filed on 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 pauperies: 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 matter 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 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.

Having regard to the decision of the Privy Council in AIR 1921 80 (Privy Council) and the ratio of the decision as enunciated by the division bench

in the decision reported in Bava Sahib v. Abdul Ghani 37 L.W. 725=A.I.R. 1933 Mad. 498, the present appeal has to be inevitably rejected.

O.41, R.10(2) C.P.C. noticed in the said decision is almost similar to O.7, R.11, C.P.C. referred to above. Having regard to the mandate

contained in O.7. R.11, C.P.C. that the plaint shall be rejected in the circumstances laid down therein, I am of the view that on the expiry of the

time granted by the learned single Judge of this court, namely, 31-1-1981 and in the absence of any order extending further the said time, the plaint

was not only bound to be rejected but rendered itself liable to be rejected before 16-11-1982 when the petition under O.33, R.1, C.P.C. came to

be filed. Thus, the question of entertaining this petition and considering the same on merits did not arise at all. Consequently, the order of the court

below does not call for an interference in this appeal. The appeal, therefore, fails and is dismissed. But there will be no orders as to costs.