Lakshi Kanta Ghosh vs Surendra Nath Ghosh

Das, J.—This is an application u/s 115 of the CPC and Article 227 of the Constitution of India and is directed against an order, No. 23, dated May 30, 1953 passed by Sri H.C. Ghose, learned Subordinate Judge, first court Hooghly.

Plaintiff No. 1, Mahadeb Ghosh, opposite party No. 11 in this Rule, and Plaintiff No. 2, Lakshi Kanta Ghose, the Petitioner in this Rule, filed a joint application for permission to sue as paupers. Along with the application they filed a copy of the proposed plaint alleging that the Plaintiffs as reversioners were entitled to possession of the disputed property on the death of Benodini Dasi on Jaistha 28, 1359 B.S. The Plaintiffs prayed for declaration of their title and for recovery of possession, the claim being laid at Rs. 5,750.

The court, thereupon, made an enquiry into the pauperism of the two Plaintiffs Mahadeb and Lakshi Kanta. By an order, dated March 19, 1953, the learned Subordinate Judge came to the conclusion that Plaintiff No. 1 Mahadeb was a pauper but that Plaintiff No. 2 Lakshi Kanta was not a pauper. On March 31, 1953, Mahadeb''s application was registered as a suit. On May 23, 1953, an application was made by the contesting Defendants, namely, opposite parties Nos. 1 to 11, praying for rejection of the plaint as the court-fees payable on the plaint had not been paid by Lakshi Kanta. On May 28, 1953, Lakshi Kanta filed an application for amendment of the plaint to the effect that Plaintiff No. 1 Mahadeb and Plaintiff No. 2 Lakshi Kanta were equally interested in the disputed property and that the share of each of the two Plaintiffs was 8 annas. Plaintiff no 2 Lakshi Kanta expressed his willingness to pay half the court-fee payable on the plaint and to proceed with the suit. These two applications, one by the Defendants and the other by Lakshi Kanta, were disposed of by the learned Subordinate Judge by order No. 23, dated May 30, 1953. The learned Subordinate Judge dismissed the Defendants'' petition for rejection of the plaint but directed an amendment of the plaint to the effect that Plaintiff No. 2 Lakshi Kanta had an 8 as share in the disputed property. By the same order the learned Subordinate Judge directed Lakshi Kanta, Plaintiff No. 2, to file a fresh suit for declaration of his 8 as share in the disputed property on payment of costs of the application for leave to sue as a pauper and on payment of proper court-fees. It is against the last part of the order, dated May 30, 1953, that Lakshi Kanta moved this Court in revision and obtained the present Rule.

At the very outset I may point out that the order of the learned Subordinate Judge, dated May 30, 1953, is not quite consistent in so far as the last two portions thereof are concerned. Be that as it may, I have to consider the propriety of that portion of the order which is now in question in this case.

Mr. Choudhury who has appeared in support of the petition has submitted that Plaintiff No. 2 Lakshi Kanta is entitled to proceed with the suit on payment of an 8 as share of the court-lees payable on the plaint.

In a case where a person applies for permission to sue as a pauper and his application is dismissed under the provisions of Order XXXIII, Rule 7(3) of the CPC on the ground that he is not a pauper, the law is well settled that the court can permit the Plaintiff to treat his application for permission to sue as a pauper as the plaint in the suit. There is, however, a divergence of judicial opinion on the further question whether the plaint should be treated as having been presented on the date when the application for leave to sue as a pauper was filed or when the Plaintiff, whose application to sue as a pauper was dismissed, puts in the costs incurred by the opposite party and pays the proper court-fee on the plaint. The latter view was taken by Edgley, J., in the case of Biswanath Das v. Khejer Ali Molla (1939) 43 C.W.N. 686, The former view wag taken by Guha and Bartley, JJ., in the case of Jagadishwaree Devee v. Tinkari Bibi ILR (1935) 62 Cal. 711 and by S.K. Ghose and Patterson, JJ., in the Case of Kali Dasi v. Santosh Kumar Pal ILR (1939) 1 Cal. 112.

In this case no question of limitation arises and as such the court was entitled to treat the application for leave to sue as paupers filed by the two Plaintiffs as the plaint in the suit, provided Plaintiff No. 2 complied with the provisions of Order XXXIII, Rule 15 of the Code of Civil Procedure. The question, however, is whether Lakshi Kanta, Plaintiff No. 2, should be allowed to carry on the suit on payment of a moiety share of the court-fees payable or whether he is bound to pay the full court-fees on the plaint. The question depends on the terms of Section 6 of the Court-fees Act and certain provisions contained in Order XXXIII of the Code of Civil Procedure. Section 6 of the Court-fees Act provides that a document of the description mentioned in Schedules 1 and 2 of the Court-fees Act Shall not be filed unless the court-fees properly payable on such a document as provided for by the Act are paid. To this rule an exception is made by Order XXXIII, Rule 8 of the Code of Civil Procedure. That rule provides that if an application for permission to the as a pauper is granted, it shall be numbered and registered and shall be deemed to be the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary way except that the Plaintiff shall not be liable to pay any court-fees on the plaint with certain exceptions mentioned in the rule. So far as Plaintiff No. 1 is concerned, there is no question that he is entitled to carry on the suit without payment of proper court-fees. The question, however, is whether Plaintiff No. 2, if he wants to continue the suit, should be called upon to pay court-fees and if so, for what amount. Section 6 of the Court-fees Act, to which I have already referred, clearly lays down that a document of the description referred to in Schedules 1 and 2 of the Court-fees Act must be stamped with court-fees payable under the Act. So far as Plaintiff No. 2 is concerned, he does not enjoy the protection conferred by Order XXXIII, Rule 8 of the Code of Civil Procedure. He must, therefore, pay the court-fees required to be paid on the plaint under the Court-fees Act. The judicial decisions to which I have referred do not touch this question. It is of course open to Plaintiff No. 2, when he finds that the court has held that he is not a pauper, to withdraw from the suit and file a fresh suit but if he wants to proceed with the plaint as filed, he must put in the proper court-fees leviable on the plaint, even though Plaintiff No. 1 who has been declared to be a pauper is not required to do so. The exemption granted by Order XXXIII, Rule 8, is entirely personal and applies so far as the pauper is concerned. The rule does not entitle the co-Plaintiff who has been found not to be a pauper, to take advantage of the provisions of Order XXXIII, Rule 8 of the Code of Civil Procedure. In my opinion, therefore, if Plaintiff No. 2 wants to carry on the suit as a co-Plaintiff, he must pay the full court-fees payable on the plaint.

Mr. Choudhury drew our attention to the provisions of Order XXXIII, Rule 11, of the Code of Civil Procedure. That rule provides for a stage after the plaint has been registered as a suit under Order XXXIII, Rule 8 and has, therefore, no application in the present case. The same remarks apply to the provisions of Order XXXIII, Rule 11, which makes a similar provision where the suit abates on the death of one of the Plaintiffs in that suit.

My conclusion, therefore, is that where two persons file a joint application for leave to sue as paupers and one of them is held to be a pauper and the other is not, if the latter wants to proceed with the suit, he must put in the entire court-fees payable on the plaint.

The result, therefore, is that this Rule is disposed of on the following terms: If Plaintiff No. 2 Lakshi Kanta wants to proceed with the suit, he must pay the entire court-fees payable on the plaint within a time to be fixed by the court below. If, on the other hand, Plaintiff No. 2 Lakshi Kanta wants to withdraw himself from this suit, he must comply with the provisions of Order XXXIII, Rule 15, of the Code of Civil Procedure.

The Rule is disposed of accordingly but in the circumstances of the case there will be no order for costs.

Mitter, J.

I agree.