P. Laxmi and Others vs P. Ramiah

This application on behalf of the Plaintiff seeks the revision of the order of the I Chief Judge, City Civil Court, dated 12th February 1952, vacating'' the order for attachment of the Defendant''s property on the preliminary ground that he had no jurisdiction to pass such an order unless and until the Plaintiff was declared pauper and his application was registered as a suit.

Before the Single Bench, which in the first instance heard this application, apart from the s authorities which were relied upon by the Court below and to which reference will be made presently reliance was placed by the parties on two conflicting decisions of this High Court. In order to resolve the conflict, one of us sitting singly referred the whole case to the Division Bench under Section, 5, Hyderabad High Court Act, with the opinion: that an application for attachment before judgment could be filed at the stage when an application to sue in forma pauperis has been filed and not granted as yet.

We have heard the learned Advocates appearing on behalf of the parties at length. The matter directly came up for decision in the case of Purna Chandra v. Tara Prosad AIR 1917 Cal 852 A, wherein Fletcher J. (NewbouldJ. concurring) held that until the Judge has determined whether or not the Plaintiff should be permits ed to sue as a pauper, there is no suit before the court. In the opinion of the learned Judges, the/rules laid down in Order 38, CPC were clear on the point and they make particular reference to Order 38, Rule 8 which according to them clearly showed that no suit came into existence until the application to sue in forma pauperis had been granted. This view found favour with a Bench of this Court in--''Syed Ismail v. Dev Rao 32 Deccan LR 707 (B). In that case, the question was whether a receiver could be appointed before the application for permission to sue in forma pauperis was judicially determined. It was held that as the expressions "at any stage of a suit" or "in any suit" respectively occurring in Sections 516 and 524, Hyderabad CPC corresponding to Order 33, Rule 5, and Order 39, Rule 5 did not find place in Section 535 of the Hyderabad Code, a receiver can be appointed before the stage mentioned in Order 33, Rule 8, CPC was reached.

But the Calcutta view was expressly dissented from by a Bench of the Bombay High Court in the case of-- Totaram Ichharam Wani Vs. Dattu Mangu Wani, (C). Beaumont C.J. as he then was and with whom Wassoudew. J. agreed observed as follows:

It seems to me that that plaint institutes the suit, whether the application to sue as a pauper is subsequently granted or not. The Plaintiffs may subsequently elect not to proceed with their application, or their application may fail. In either of those events, it seems to me that the suit has been properly instituted by the plaint and it will be proceeded with on that plaint in the ordinary course on the Plaintiffs paying the court-fees. In practice a Plaintiff is usually given further time to pay court-fees after his application to sue as a pauper has failed. If the application succeeds, then, no doubt the petition is to be deemed to be the plaint, but Rule 8 does not provide that it is the plaint. I entertain no doubt myself that the plaint, whether it consists of the original plaint, or of the petition deemed to be a plaint, takes effect from the date when the plaint and the petition were presented.

That has recently been held to be the correct view of the matter by Gentle J., of the Madras High Court in-- Chidambaram represented by his maternal grandfather Natesa Mudaliar as his next friend Vs. Nataraja Mudaliar and Others, (D), where he followed the view expressed by the Privy Council in--''Stuart Skinner v. Willam Orde 6 Ind App 12G (E). In that case, the Board were dealing with a question of limitation, and the Board expressed the view that a petition to sue as a pauper became a plaint, and under the statute of limitation the suit must be deemed to have been instituted when that application was filed.

After discussing the Calcutta case referred to above, the learned Chief Justice observed that the filing of the application in the form of a plaint which is taken on the file as a plaint commences the suit. His Lordship further observed that it would be a strange thing if a Plaintiff who desires to sue as a pauper cannot apply to prevent the Defendant from making away with the property in suit until his application for leave has been disposed.

With respect we associate ourselves with these observations and in our opinion, the opening words of Order 33, Rule 1 point to the same conclusion. That rule provides that "subject to the following provision any suit may be instituted by a pauper". According to that rule, what is instituted is a suit. The mere postponement of the registration of plaint within the meaning of Order 33, Rule 8 would not negative the conception of suit as contemplated by Rule 1 of Order 33. A perusal of Order 33, Rule 2 would show that an application to sue as a pauper is a combination of a plaint and an application to excuse the payment of thy court-fee on it. We are not unmindful of the fact that a Pull Bench of the Allahabad High Court has taken a contrary view iii the case of--Gnimna Mai v. Bhagwant Kishore AIR 1938 All 584 (F). But we find that the view taken in Totaram''s case, (C)'', has been approved by the erstwhile Judicial Committee of Hyderabad in--''Dadarao v. Balmukund 37 Deccan LR 312 (Q). In--Ingal Dharma Rao v. Babu Reddy 34 Deccan LR 419 (H), it was held that before the stage as contemplated by Order 33, Rule 8 was reached, a pauper can be allowed to amend the application for permission to sue as a pauper because it is as well a pauper''s plaint.

In our opinion, a too strict and technical interpretation should not be put on the provisions of Order 33, Rule 8, and we see no reason to differ from the view taken in--Vali Mohamed v. Rabia Bi 35 Deccan LR 281 (D. The observations to the contrary occurring in ''32 Deccan LR 707 (B)'' were no more than obiter dicta because their Lordships were not dealing with the provisions of Order 38, Rule 5 or Order 39, Rule 1. It would indeed be an anomalous position if it were held that a pauper Plaintiff could get an interim relief by way of appointment of a receiver before his application to sue in forma pauperis is registered as a plaint but he could not get interim relief by way of temporary injunction or arrest or attachment before judgment.

For the reasons stated above, we allow the revision and remit the case for the decision of the other grounds raised by the counter-Petitioner which the learned Judge below has left undecided. In the circumstances of this case, we make no order as to costs.