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Hotha Venkataramamurthi vs Hota Kameswaramma and Others

Andhra Pradesh High Court · Decided on 14 September 1965 · Citation: AIR 1966 AP 276

HON’BLE JUDGES
P. Satyanarayana Raju, C.J
ACTS & SECTIONS REFERRED
Civil Procedure Code, 1908 (CPC) — Order 33 Rule 5
CASE NUMBER
Civil Revision Petition No. 711 of 1960
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Judgment

5 paragraphs · 352 words

P. Satyanarayana Raju, C.J.—Having held that the petitioner was not a pauper, the lower court dismissed the original petition without giving an opportunity to the petitioner to pay the Court-fee. There is a long catena of decisions of the Madras High Court which were followed by a Division Bench of this Court in Sulemani Begum and Others Vs. Ghulam Mohammed Shafi Khan, in all of which it was held that an application to sue as a pauper is a composite document consisting of an unstamped plaint and an application for permission to sue in forma pauperis. The learned Judge held in the case cited above that even if the application for permission to sue in forma pauperis, is rejected the plaint still remains and the Court may in the discretion allow the petitioner to pay the court fee and in each a case the suit shall be deemed to have been instituted on the date of presentation of the application.

2.

It was pointed out by Justice Wadsworth in Kanthimathi Ammal Vs. Ganesa Aiyar insane by his wife and next friend Pichammah, that it is undoubtedly the practice of most courts on coming to an adverse conclusion on a pauper application, to give the appellant sometime to pay the court-fee.

3.

The trial Court in rejecting the criminal petition in its entirety committed an error of jurisdiction. Even when the trial court held that the petitioner is not a pauper and rejected the application for permission to sue in forma pauperis, the plaint still remains on the file of the Court until it is rejected. There is no specific order of the lower court rejecting the plaint.

4.

The order of the lower Court dismissing the original petition in its entirety is set aside. But the rejection of the application for leave to sue in forma pauperis will remain. The lower court will consider whether the petitioner plaintiff should he given time for payment of court fee and pass appropriate orders. For this purpose, the case is remanded to lower court.

The cost of this petition will abide and follow the result.