Kaman Mada and Others vs Malli and Another

Jackson, J.—The petitioners seek for revision of the decree of the District Munsif, Kollegal, in O.S. No. 153 of 1922 on the following

ground:

The petitioners are defendants and judgment-debtors in a pauper suit. In assessing the costs the Court has ordered them to pay Rs. 175 as Court-

fee on the plaint which would be correct if the old Court Fees Act were applicable. But if on the day the plaint was filed the new Act was

applicable, then the fee, chargeable on the value of one year''s maintenance, would be considerably less.

The point for determination is, therefore, when was the plaint filed.

The application to sue as a pauper was presented under Order 33, Rule 3 on 23rd December, 1921, when the old Act was in force. The

applicant was allowed to sue as a pauper under Order 33, Rule 7. on 30th June, 1922, when the new Act was in force. The application was then

numbered and registered and deemed the plaint in the suit under Order 33, Rule 8. The petitioners plead that it would only be so deemed for the

purpose of levying the Court fee on the date when it was numbered and registered. The counter -petitioner contends that it must be deemed to

have been filed as a plaint from the date of presentation.

It is urged that until the numbering and registering there is no filing as contemplated by Section 6 of the Court Fees Act. I do not think that

anything turns on the technicality of the word "" file."" If for any purposes the application can rank as a plaint from the date of presentation, then it

must be regarded as filed from the date. Now the Limitation Act lays down, Section 3, that in the case of a pauper a suit is instituted when his

application for leave to sue as pauper is made. That must mean that from the date of his application it is assumed that his plaint is filed ; it cannot

mean that limitation ceases to run by operation of an unfiled plaint. The language used by the Judicial Committee in Stuart Skinner v. William Order

ILR (1879) A 241. leaves no room for doubt in the matter. On page 250 : ""The petition should operate as a plaint without the necessity of filing a

new case. The petition is filed and proceedings are taken.

The Limitation Act is in part materia with the Code of Civil Procedure, and the stipulation in Section 3 of the Act must be read along with Order

33, Rule 8 of the Code. The application shall be deemed the plaint in the suit from the date when the application is made. That being so it would be

anomalous to have a plaint in the suit for which no Court fee was payable tilt a later date. The Court-fee is payable from the date of the

presentation of the application and it is exactly that fee to which the Court must address its mind when it considers the pauper application. It

considers the fee on the date of presentation and whether the applicant can afford to pay it, not what the fee may be in future if ever it should

become payable.

For the above reasons I see no cause to revise the order of the Lower Court.

The petition is dismissed with costs.