Subba Rao vs Venkataratnam and Others

Kumaraswami Sastri, J.—In this case the Plaintiff is the Appellant. He filed the suit for partition and delivery to him of his share in the

properties, alleging that he is a member of an undivided family with Defendants 1 to 6, that the immovable properties in the plaint schedule are

joint-family properties, and praying that the decree in Suit No. 24 of 1922 should be set aside as not binding on him. He paid a stamp duty of Rs.

250 valuing the suit as one by a coparcener to be in possession with the other coparceners. The suit was filed on the 17th April 1923, written

statements were filed and preliminary objection was taken as to the valuation of the suit and the Court-fee paid. Issue 12 is ""Are the valuation of

the suit and the Court-fee paid not correct?"" The Subordinate Judge in dealing with it disposed of the preliminary point and held that the valuation

was not correct. He held that the Plaintiff should not value the suit u/s 7, paragraph 4(b) and was not entitled to put his own valuation on the

property. He held that the amount payable was prescribed by Section 7, paragraph 5, of the Court Fees Act. When he held this, the Plaintiff put in

an application to be permitted to continue the suit in forma pauperis on the ground that he was unable to pay the heavy stamp duty of Rs. 1,523

and odd which would be payable by him in addition to the fee already paid. He put in the usual application through his pleader to allow him to

continue in forma pauperis. The Subordinate Judge dismissed the application on the short ground that it was not in the form prescribed by the

Code and that it was not presented by the Plaintiff in person and hence the appeal. The first question is whether the Subordinate Judge was right in

dismissing the application. It is now clear on the authorities that in a case like the present it is open to the Plaintiff to apply to continue the suit in

forma pauperis. We need only refer to Thompson v. The Calcutta Tramway Co. ILR (1893) Cal. 319 and Revji Patil v. Sakharam ILR (1884) 8

Bom. 615. Although there is no direct decision in the Madras Court on the point, the learned Judges who decided Solayappa Chetty v.

Lahshmanan Chetty (1919) 38 M.L.J. 146 express no dissent from the view that such an application would lie. If such an application lies, then the

question is whether the Subordinate Judge was right in holding that it should be in the form prescribed in Rule 2 of Order XXXIII, and presented in

person as required by Rule 3. It is difficult to see how these rules can apply to a case like the present. Rule 2 contemplates that the application

itself should be in the form of a plaint. It should contain all the particulars required as regards plaints in suits; there should be a schedule of any

movable and immovable property belonging to the applicant and its estimated value and the application should be signed and verified in the manner

prescribed for signing and verification of pleadings. Rule 3 says that the application 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 is that when the application is in proper form and duly

presented to the Court, it may, if it thinks fit, examine the applicant or the agent when the applicant is allowed to appear by 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. Then we come to Rule 8 which says that where the application is granted, it shall be numbered and

registered and shall be deemed the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except

that the Plaintiff shall not be liable to pay any Court-fee (other than fees payable for service of process) in respect of any petition, appointment of a

pleader or other proceeding connected with the suit. Now the question is, where, as in the present case, the plaint has already been filed with a

stamp duty which is found to be inadequate, where a written statement has been put in and issues settled and the Court at a trial of an issue as to

the Court-fee wants additional Court-fee which in amount is so large that the Plaintiff could not pay it, is the application for permission to continue

the suit in forma pauperis to be dismissed, because it is not presented as required by Rule 8 which, ex hypothesi, requires that the application

should be in the form of a plaint and when admitted is to be numbered and registered as a plaint. It is obviously impossible in a case like the

present. There is already a plaint registered and numbered containing all the allegations, and an application to continue it in forma pauperis could

not be treated as a plaint or registered as a plaint. It is, therefore, obvious that it is not possible to comply with this provision. 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. We are therefore of opinion that the Subordinate Judge is wrong and that the matter should be tried on the lines indicated

above. If the Plaintiff is found a pauper, of course the other issues will go on as if the proper stamp duty had been paid.

One other point has been raised by the Appellant''s advocate, viz., that the order of the Subordinate Judge wrong in requiring him to pay

additional duty. In view of the decision on the other question, it is unnecessary to decide this point. We think that when occasion should arise for

the Plaintiff or the Defendant to pay stamp duty, an inquiry as to the proper Court-fee payable should be held after notice to the Government. We

allow the appeal and send the case back to be disposed of in the light of the observations in our judgment. The costs of the appeal will abide and

follow the result.

There is no question of any Court-fee paid to the Government on the appeal memorandum, because, even if it had been paid, the Appellant

would be entitled to refund.