Munian vs Kesava Pandithan and Others

Basheer Ahmed Sayeed, J.—C. R. P. No. 1079 of 1952 arises out of an order passed by the learned District Munsif of Vridhachalam,

refusing leave to the petitioner to file a suit in ''iorma pauperis'' on the ground that he has means to pay court-fee due on the plaint. In the order

relesing leave to sue as a pauper the learned District Munsif directed the petitioner to pay court-fee on or before 31-1-1952. This direction was

not complied with by the petitioner and when the matter came up again and after giving further extension of time, the learned District Munsif

dismissed the original petition for leave to sue in ''forma pauperis''. No appeal or revision has beep preferred against that subsequent order

dismissing the original petition for leave to sue as a pauper.

A preliminary objection has been taken by the learned counsel for the respondent that the C. R. P. No. 1079 of 1952 is not competent by

reason of the subsequent order rejecting the plaint in toto for non-compliance with the direction to pay court fee due on the plaint and which had

not been taken on revision or appeal. He has invited my attention in support of his contention to a decision of my learned brother Panchapakesa

Aiyar J. reported in -- In Re: Bommisetty Ramayamma, . The facts reported in that case arc exactly on a par with the facts obtaining in the present

case and there appears to be no controversy at all with regard to those facts. Panchapakesa Aiyar J. has followed a Full Bench ruling of this court

reported in -- Paruchuru Thirumala Satyanarayanacharyulu and Another Vs. Vannava Ramalingam and Others, and has applied the principle of

that decision to the facts of that case.

I have gone through the decision of the Full Bench and also the decision of my learned brother. In my view, the facts that arose for consideration in

the Full Bench ruling, are not in ''pari materia'' with the facts that arise in the present civil revision petition and I do not think that the principle of that

Full Bench decision could be made applicable to the facts of the present case. In the Full Bench decision the suit had already been numbered and

registered and on objection being taken as to the correctness of the court-fee paid it was found that the suit had been undervalued and a large

amount of deficit court-fee was ordered to be paid and it was not paid. Thereupon the suit was dismissed.

The order passed in that case is one which comes directly under the definition of a decree contained in Section 2, Sub-clause (2), C. P. C. But in

the present case, it cannot be said that what has been rejected is a plaint or a suit; for taking into consideration the special procedure provided for

in the CPC under Order 3.3 for applications for leave to sue in forma pauperis, it cannot be said that until and unless the application for leave to

sue be been granted there is any plaint before the court to be numbered, registered or rejected. This would arise only when an order is passed

under Order 33, Rule 8 which is not the case here. What is before the court until such a stage is reached is only an application for leave to sue.

If a condition is imposed that in order to grant the application for leave to sue or to entertain the plaint filed along with the application as a suit,

court-fee is to be paid within a certain date, ft cannot be said that the original petition has become converted into a plaint or a suit in order to

attract the provisions of Order 7, Rule II. It is also fetching too much to say that simply because a small fee of Rs. 0-8-0 has been affixed to the

application for leave to sue in ''forma pauperis'', the court-fee that has been directed to be paid is an additional court-fee on the plaint as if the

plaint had already been numbered and entertained as a suit. .

Except the Full Bench decision which has been applied to the facts of the case before my learned brother, Panchapakesa Aiyar J, there appears to

be no other authority cited before him on the point which has arisen for decision before me. Mr. Venkatesan the learned counsel appearing for the

petitioner has invited my attention to the following decisions reported in -- ''Secretary of State v. Jillo'', 21 All 133 (C); -- ''District Official

Receiver v. Firm

Sohan Lal Ramil Das , AIR 1940 Lah 446 (D) and --''Mahadev Gopal v. Bhikaji Vishram'', MR. 1943 Born 292 (E) where it has been held that

before the application for leave to sue in forma pauperis is granted under Order 33, Rule 8, the application cannot be deemed to be a plaint in

order to attract either the definition of a decree to the order that may be passed therein or the provisions of Order 7, Rule 11. I am inclined to

agree with the rulings in these decisions cited by the learned counsel for the petitioner. I, therefore, see no point in the preliminary objection taken

by the learned counsel on behalf of the respondent.

Coming to the merits of the application for leave to sue in ''forma pauperis'' it has to be noted that the petitioner is a deaf and mute person. He is

endeavouring to recover the property which has been settled upon him by virtue of a deed of settlement referred to in the pauper application. The

evidence with regard to his capacity to pay is to the effect that he has two other small items of property which are worth about Rs. 400 or Rs. 500.

But it must be remembered that in these two items of properly which are said to be in his possession he has got only a life interest. He is in

possession of the items by virtue of the settlement deed which clearly provides that he would not be entitled to alienate or otherwise encumber this

property but would be entitled only to a life interest. It cannot be said that mere possession and enjoyment of a life interest in these two items of

properly would make him a person possessed of sufficient means to say the court-fee required on the plaint which he has presented to the court.

The very fact that these properties are not to be encumbered as recited in the deed of settlement under which he gets a life interest, would scare

away any person who could be approached to lend any sum by way of mortgage or otherwise. The learned District Munsif has not found in clear

terms that the petitioner has sufficient means to pay the court-fee due on the plaint. The finding is not quite satisfactory for it confines itself to the

mere statement that he has means for the mere reason that ho is in possession and enjoyment of two items of property on which it will clearly be

not possible for the petitioner to raise any funds to pay the requisite court-fee. Any person who could be approached for lending money would

certainly hesitate to advance money on account of the fact that what the petitioner is possessed of is only a life interest in those items and his

powers of alienation are restricted in respect of the properties. Therefore, it is too much to say that in cases like these he has sufficient means to

pay and I do not think that the rejection of his application for leave to sue in ''forma pauperis'' is light, I would, therefore, set aside the order of the

learned District Munsif and direct that the petitioner be entitled to the leave which he has asked for to sue in ''forma pauperis. His application is

allowed and the plaint will be received, numbered and registered. C.R.P. No. 1079 of 1952 is allowed. (4) In regard to other C. R. Ps, (C. R. P.

Nos. 1853 and 1863 of 1952) I do not think that any orders are required in view of the order passed In C. R. P. No. 1079 of 1952. They are

both dismissed. Thesse will be no order as to costs in any one of these petitions.