G. Kandaswami Naicker vs G. Raju Naicker and Others

P.V. Rajamannar, C.J.—This is an appeal against the judgment of Balakrishna Ayyar, J., directing the appellant to pay a sum of Rs. 615-1-

0 towards the Court-fee due on a plaint which he presented on the Original Side of this Court. The suit was for partition. In the plaint there were

averments regarding a mortgage decree and a sale which followed that decree and the plaintiff apparently contended that the decree and the sale

were not binding on him. The plaint was presented on 28th May, 1952, with a Court-fee of Rs. 100, evidently on the assumption that it fell under

Article 17B, Schedule II of the Court-fees Act. On 12th August, 1952, the office returned the plaint directing the plaintiff to value the relief to set

aside the mortgage decree and to pay Court-fee thereon on such valuation. Thereupon the appellant filed an application for leave to continue the

suit in forma pauperis. On 23rd September, 1953, the learned Master passed an order refusing leave to the plaintiff to continue the suit as pauper

but allowed him six weeks time to pay deficit Court-fee. Against this order of the Master an appeal was taken to the learned Judge in Chambers;

Ramaswami, J., by his order dated 29th January, 1954, disagreeing with the Master allowed the plaintiff to continue the suit as a pauper. In

pursuance of this order the plaint was registered and numbered as O.S. No. 74 of 1954 on the 24th February,, 1954. Against the order of

Ramaswami, J., one of the defendants preferred an appeal O.S. Appeal No. 59 of 1954. Meanwhile the Government on information that the

appellant was possessed of properties which had not been disclosed in his original pauper petition filed an application on 8th December, 1954, for

dispaupering the appellant. When the appeal against the order of Ramaswami,J., came up before the Appellate Bench they made an order on 15th

April, 1955, directing the Master to submit a finding on the question of the pauperism of the appellant after taking additional evidence. As the

subject-matter was the same, the Master passed a general order on 17th October, 1955, to this effect:

It follows that the order in Application No. 5675 of 1954 is that the plaintiff is dispaupered and that he shall pay the Court-fee within six weeks

from today. This order shall however await further orders in O.S. Appeal No. 59 of 1954.

On 2nd February, 1956, O.S. Appeal No. 59 of 1954 was allowed and the order of Ramaswami, J., was set aside. This meant that the appellant

must be deemed to have not been permitted at any time to continue the suit in forma pauperis. On 16th February, 1956, the appellant purported to

withdraw the suit and it was dismissed. It was then contended on behalf of the Government that the appellant was liable to pay full Court-fee under

Order 33, Rule 11 of the Code of Civil Procedure. A further fact may be mentioned. On 22nd November, 1955, that is, after the order of the

learned Master dispaupering him and before the disposal of the appeal by the Division Bench, the appellant paid a sum of Rs. 937-6-0 as

additional Court-fee, but according to the office this was not adequate and the appellant had to pay further Court-fee. Balakrishna Ayyar, J., held

that the appellant had been allowed to sue as a pauper and subsequently be had been dispaupered and therefore the provisions of Order 33, Rule

11 of the CPC would apply and made the order now under appeal.

With respect to the learned Judge, we are unable to agree with this view. In more than one place the learned Judge has said that the appellant

had been permitted to sue in forma pauperis obviously referring to the order of Ramaswami, J., passed on 29th January, 1954. But the order or

Ramaswami, J., was in terms set side by the Devision Bench with disposed of O.S. Appeal No. 59 of 1954 and the order of the Master was

restored. The legal result of the order of the appellate Court would therefore be as if the appellant had never been allowed to continue the suit in

forma pauperis. The learned Judge observed that the decision of the Bench in O.S. Appeal No. 59 of 1954 merely confirmed the order of the

Master by which the appellant was dispaupered. That is not so. On a proper construction of the order of the appellate Court, we hold that the

order of Ramaswami, J., allowing the appellant to continue the suit in forma pauperis was set aside. Once it is held that the appellant was never

allowed to continue the suit in forma pauperis and it is also the case of the Government that he had never paid the requisite Court-fee, it follows

that there was never a suit properly on the file of this Court either in forma pauperis or on payment of the requisite Court-fee. Owing to the fact

that the suit was numbered on account of the order of Ramaswami, J., the appellant purported to withdraw the suit. But this would not be the

correct position in law. There was no suit for him to withdraw. What the plaintiff must be deemed to have done is to stop further prosecution of his

claim. Once he was not allowed to continue the suit in forma pauperis and he had not paid the requisite Court-fee, the suit must be deemed to be

not on the file, and if the plaintiff did not choose to pay the deficit Court-fee, what this Court can do it to return the papers to him. In such

circumstances we are of opinion that the provisions of order 33, Rule 11 of the CPC will have no application. The appellant could not be directed

to pay any further Court-fee under the provision. The appeal is allowed and the order of Balakrishna Ayyar, J., requiring the appellant to pay a

further amount of Rs. 615-1-0 as deficit Court-fee is set aside. There will be no order as to costs.