Smt. Gayatri Devi and others vs Smt. Vidya Devi

T.P. Naik, J.

one Rajaram filed civil suit for a declaration, perpetual injunction and arrears of rent against Smt. Vidya Devi, his wife, alleging that (sic) the read sole owner of the house which was purchased out of the funds (sic) by him penami in the (sic) of the Defendant. During the pendency of the suits Rajaram died and the present Plaintiffs-applicants were brought on (sic) as his legal representatives. Faced with the difficulty that if the suit (sic) to be decreed, they along with the Defendant Smt. Vidya Devi, would be (sic) to the suit house as the heirs of the deceased Rajaram, they applied (sic) of the plaint by introducing the plea that in case the suit (sic)they were entitled to 7/8th share in the suit house, in respect (sic) they any also be put in possession. While applying for the aforesaid (sic) they valued their share at Rs. 26,250/- and as on the said (sic)a Court fee of Rs. 2,100/- was required, they prayed for being (sic) as paupers. The Defendant opposed the application alleging (sic) representatives of the deceased could raise only such pleas and (sic) only such reliefs as the deceased would have claimed if he had (sic) the suit. However, by the order dated 21-9-1967, the First Addi-(sic) judge, Bhopal, allowed the application for amendment but (sic) the application for permission to sue in forma pauperis because, (sic) as regards the latter prayer the application had not been filed (sic) with the provisions of Order 33 of the Code of Civil Procedure. (sic) applicants have, therefore, come up for revising the aforesaid

Where a Plaintiff files a suit and his plaint is admitted with a (sic) court-fee but later, after the written statement has been filed and issues are settled, the Court at the trial of an issue as to the court-fee comes (sic) that an additional court-fee would be required, the Plaintiff (sic) is unable to pay the additional court-fee, make an application for (sic) to continue the suit as a pauper. In such a case, his application to (sic) a pauper cannot be dismissed, because it was not in accordance with (sic)of the code of Civil Procedure: [ Kolluri Subbarao Vs. Kolluri Venkataratnam and Others, , Hafiz Mohammad Fateh Nasib v. (sic) and (sic) Patil v. Sakharam ILR 8 Bom. 615]. It has also been held that where (sic) dies during the pendency of his application for permission to (sic) (sic)pauperis, his legal representatives can be substituted in his place, (sic) because the right to sue in forma pauperis was a right personal to the (sic) his legal representatives, if they also want to continue the suit, in forma pauperis, shall have to show that they are also paupers entitled to sue in forma pauperis. See Mst. Annapurna Bai v. Balaji Maroti 1946 NLJ 272=AIR 1946 Nag, 320-I.L.R. 1946 Nag.668.

There is thus no difficulty that on the death of Rajaram who had filed the suit in the ordinary way, his legal representatives could be brought on record "to continue the suit in the ordinary way. The question however is whether, if on their amendment being allowed, they are not in a position to pay an additional court-fee necessary to prosecute the amended paint their application to sue in forma pauperis can be rejected on the short ground that it was not filed in accordance with the provisions of order 33 of the Code of Civil Procedure.

A reading of Order 33 would show that an application made under Rule 1 of Order 33 is a composite application. It is a plaint plus a prayer that the Plaintiff be allowed to sue in forma pauperis; and the, intention of the statute appears, to be that, unless the petition was rejected, it would Operate as a plaint without the necessity of filing a fresh one: [see Stuart (sic) alias Nawab Mirza v. William Orde ILR 2 All. 241. (P.C.)]. A perusal of Rule 2 of Order 33 again shows that the application has to be in the form of a plaint. It has to contain all the particulars required as regards plaints in suits and has also to contain a schedule of any movable and immovable property belonging to the applicant and its estimated value. It has to be signed, and verified in the (sic) prescribed for signing and verification of pleadings. Rule 3 then says that it should be presented by the applicant in person unless he is exempted from appearing in Court in which case the application may be presented by an authorized agent who can answer all material questions relating to the application and may be examined in the same manner as the party Rule 4 prescribes that where the application is in proper form and duly Presented the Court may, if it thinks fit, examine the applicant or his agent regarding the merits of the claim and the property of the applicant. Rule 5 says that the application shall be rejected if it is not, inter alia, framed and presented in the manner prescribed by rules 2 and 3. Rule 8 then prescribes that where the application is granted, it shall be numbered and registered, and shall be deemed a plaint in the suit, and the suit shall proceed in all other respects as a suits instituted in the ordinary manner, except that the Plaintiff shall not be liable to pay any court-fee.

In the instant case, the plaint had already been filed by a lawyer. It had been filed with the requisite court-fee affixed to it at the time it was presented. On the death of Rajaram, his legal representatives have been brought on record in his place. They have been permitted to amend the plaint because, so far as they are concerned, they as legal representatives of the deceased being out of possession have to claim possession of the suit property in respect of their share only. Under the circumstances, I do not gee how in such a contingency Order 33 of the Code of CPC could he made applicable, which Order in terms provides that from the very inception a composite application (a plaint plus an application to sue in forms pauperis) has to be made. In the case in hand, even if an application simplicities for permission to sue in forma pauperis without a plaint were, to be made, it would not be in compliance with order 33, Rule 2, nor can such an application be ever turned into a plaint by the deeming provision contained in Rule 8 of Order 33. In my opinion, it is quite impossible in a case like the present one to comply with the provisions of Order 33.

Where it is obviously not possible to comply with the provisions of Order 33 of the Code of Civil Procedure, Kumaraswami Sastri, J. in Subba Rao v. Venkataratnam (supra) has held that the inherent power of the Court should be brought into action. In the words of

Kumaraswami, J.

In such cases the question is what is to be done. It has been held as we said before that it is competent to the Court to allow in its inherent power the party to apply to continue the suit in forma pauperis. If that power exists, there should certainly be some power in the Court by which that procedure can be followed up. There is no use of saying that the Court can do it and at the same time requiring the party to do something which is impossible under rules 2 and 8. In such cases, the proper thing would be to see if the plaint discloses a cause of action and issue notice to the opposite side and to the Government to see if the Plaintiff is really a pauper, unable to pay the additional stamp duty. If that is inquired into and found, he should be allowed to continue the suit in forma pauperis. In the present case, there is no doubt that on the plaint there is a sufficient cause of action. It is not barred on the face of it and there is no reason for any inquiry except the inquiry as to whether the Plaintiff is or is not able to pay the large additional fee demanded.

In the instant case also, there is no doubt that on the plaint there is a sufficient cause of action. It is not barred on the face of it and there is no other inquiry needed except the inquiry as to whether the Plaintiffs are or are not able to pay the large additional court-fee required on the amended plaint.

I, therefore, set aside the order of the learned Additional District Judge and remand the case to him for trying it on the lines indicated above.