Makundi Mandal v. Haridas — 1968 DIGILAW 163 (PAT)

Judgment S.N.P.Singh, J. 1. This application in revision by the defendants first party of Title Suit No. 148 of 1965 is directed against the order dated the 20th of March, 1967, passed by the learned Subordinate Judge, Bhagalpur, in Miscellaneous Case No. 61 of 1966. By the impugned order the learned Subordinate Judge allowed the application of the plaintiffs for permission to sue in forma Pauperis. 2. It appears that originally the plaintiffs filed the title suit in the court of the Munsif at Bbagalpur. The plaint was however, returned to the plaintiffs because the valuation of the suit properties was beyond the pecuniary jurisdiction of the learned Munsif. The plaintiffs, therefore, filed the plaint in court of the Subordinate Judge on the 6th of December, 1965. The sheristadar after examining the plaint made a report that the court-fee paid was sufficient. The plaint was, therefore, admitted and the suit was numbered as title suit 148 of 1965, Subsequently the plaintiffs filed the requisite fee for issue of summons and summons were duly served on the defendants and 20th of January, 1966, was fixed for settlement of issues. It appears that, later on a fresh stamp report was made by the Sheristadar according to which the plaintiffs were required to pay ad valorem court-fee and the deficit court-fee payable by them was to the extent of Rs. 1,224.45 paise. The plaintiffs filed objection to the report of the stamp reporter. The learned Subordinate Judge considered the report of the stamp reporter as well as the objection of the plaintiffs and by his order dated the 28th of July, 1966, held that ad valorem court-fee was payable on the valuation given by the plaintiffs. He accordingly accepted the report of the stamp reporter as correct and directed the plaintiffs to pay the deficit court-fee by the 10th of August, 1966. On the 10th of August, 1966, a petition was filed on behalf of the plaintiffs for extension of time. The learned Subordinate Judge allowed the petition and directed the plaintiffs to pay the deficit court-fee of Rs. 1,224.45 paise by the 17th of August. 1966. On the 17th of August. 1986, the deficit court-fee was not paid nor any petition for extending the time was filed. The learned Subordinate Judge, therefore, adjourned the case to the 18th August, 1966. The learned Subordinate Judge allowed the petition and directed the plaintiffs to pay the deficit court-fee of Rs. 1,224.45 paise by the 17th of August. 1966. On the 17th of August. 1986, the deficit court-fee was not paid nor any petition for extending the time was filed. The learned Subordinate Judge, therefore, adjourned the case to the 18th August, 1966. Later on the same date, however, an application under Order 33, Rule 1 of the Code of Civil Procedure was filed on behalf of the plaintiffs in which they stated that they were not in a position to pay the requisite court-fee and prayed that permission to sue in forma pauperis might be given to them. On the basis of that application Miscellaneous Case No. 61 of 1966 was instituted. As the petition was not supported by affidavit nor was it verified, the learned Subordinate Judge directed that the applicant should file affidavit and examine himself by 18-8-66. On the 18th August, 1966, neither the plaintiffs appeared nor the affidavit was filed. Therefore, the miscellaneous case was adjourned to 19th August, 1966. On the 19th August, 1966 an affidavit in support of the petition under Order 33. Rule 1 of the Code of Civil Procedure was filed and one of the applicants, namely, Sheonarain Das examined himself in support of the application. The learned Subordinate Judge thereafter admitted the application. It appears that in the title suit itself on the same day a petition was filed by the plaintiffs to keep the suit pending till the disposal of the pauper application. A rejoinder to the application of the plaintiffs was filed by the defendants first party. Ultimately the miscellaneous case was heard on the 11th of March, 1967. Witnesses were examined on behalf of the plaintiff applicants as well as on behalf of the opposite party, namely, the defendants first party. The learned Subordinate Judge afler considering the evidence of the parties held that it was a fit case in which permission should be given to the plaintiffs to sue in forma pauperis. Accordingly he allowed the application. 3. Being aggrieved by the order of the learned Subordinate Judge, the defendants first party have preferred this application in revision in this Court. Accordingly he allowed the application. 3. Being aggrieved by the order of the learned Subordinate Judge, the defendants first party have preferred this application in revision in this Court. Learned counsel appearing for the petitioners has raised the following contentions, namely, that the order of the learned Subordinate Judge is bad in law inasmuch as there is no finding that the plaintiffs are incapable of raising the requisite money; that the Subordinate Judge had no jurisdiction to allow the application of the plaintiffs to sue in forma pauperis when the suit had been registered as an ordinary suit; that as court-fee had not been paid within the time allowed by the Court, the suit ought to have been dismissed under Order 7, Rule 11 and that the learned Subordinate Judge acted without jurisdiction in allowing the application of the plaintiffs to sue in forma pauperis on the basis of an application which was not verified in accordance with law. 4. It appears from the order under revision that one of the plaintiffs gave evidence to the effect that except the suit property he had no other property and as such he had no means to pay the court-fee. He denied that he had got any cattle. He was supported by the two other witnesses. The defendants, on the other hand, examined one Makund Mandal, who gave evidence to the effect that the plaintiffs had 4 to 5 Kathas of land besides two buffaloes and one cow. He further stated that the plaintiffs used to earn Rs. 6 to Rs. 7 per day. One Chamru Pandit gave evidence to the effect that the applicants have got a house worth Rs. 1500 to Rs. 1600. Another witness also gave similar evidence. The learned Subordinate Judge upon a consideration of the evidence held that there was no reliable evidence to show that the applicants were possessed of cattle and that they sold milk. He further accepted the case of the plaintiffs that they had no land of their own and they were land-less labourers. He further accepted their evidence that they are four brothers and the house belonged to all of them. He positively came to the finding that the objectors exaggerated the means of the applicants. Accordingly he held that it was a fit case in which permission should be given to the plaintiffs to sue in forma pauperis. He further accepted their evidence that they are four brothers and the house belonged to all of them. He positively came to the finding that the objectors exaggerated the means of the applicants. Accordingly he held that it was a fit case in which permission should be given to the plaintiffs to sue in forma pauperis. There is nothing in the order of the learned Subordinate Judge to indicate that the plaintiffs had sufficient property on which they could raise the requisite amount for payment of the deficit court-fee even if the value of the house in which the plaintiffs reside be taken as Rs. 1500/-. As the plaintiffs have two more brothers, they cannot raise more than Rs. 800.00 by selling or mortgaging the house. Though the learned Subordinate Judge has not expressly stated in so many words that the plaintiffs are unable to raise the money, the order read as a whole clearly shows that the plaintiffs are not in a position to raise the requisite amount of money to pay the deficit court-fee. In my opinion, there is, therefore, no substance in the first contention which has been raised by learned counsel. 5. As the second and third points raised by learned counsel appearing for the petitioners are inter-related, I will consider them together. The object of Order 33 of the Code of Civil Procedure is to enable a person, who is too poor to pay the court-fee, to prosecute the suit without payment of requisite court-fee. Rule 1 of Order 33 lays down as follows: "1. Subject to the following provisions, any suit may be instituted by a pauper:" Explanation:- - A person is a pauper when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth one hundred rupees other than his necessary wearing-apparel and the subject-matter of the suit". There is no restriction in the power of the Court to allow a case not instituted as a pauper suit to be continued as a pauper suit on proper application made by the plaintiff subsequently in accordance with law. There is no restriction in the power of the Court to allow a case not instituted as a pauper suit to be continued as a pauper suit on proper application made by the plaintiff subsequently in accordance with law. Order 7 Rule 11 of the Code of Civil Procedure lays down as follows:- - "The plaint shall be rejected in the following cases:- - (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so"; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper, within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law". As provided under Clause (c) of Order 7, Rule 11, if the plaint be properly valued hut it is insufficiently stamped and if the plaintiff fails to supply the requisite court-fee within the time fixed by the Court, the plaint must he rejected. It is well settled however, that the Court has ample power under Sec.148 of the Code of Civil Procedure to enlarge the time for the payment of deficit court-fee. As I have already stated, in the instant case of the 28th of July, 1966, the learned Subordinate Judge accepted the report of the stamp reporler as correct and directed the plaintiffs to pay the court-fee by the 10th of August, 1966. On the 10th of August, 1966, however, the plaintiffs filed a petition for extension of lime which was allowed by the Subordinate Judge and he directed the plaintiffs to pay the court-fee by the 17th of August, 1966. On the 17th of August, 1966, the plaintiffs instead of filing the Court-fee made an application under Order 33, Rule 1 of the Code of Civil Procedure praying for permission to sue in forma pauperis. It is manifest that the Subordinate Judge did not dismiss the suit under Order 7, Rule 11 as an application to sue in forma pauperis was filed by the plaintiffs. It is manifest that the Subordinate Judge did not dismiss the suit under Order 7, Rule 11 as an application to sue in forma pauperis was filed by the plaintiffs. In the case of Mohammad Fateh Nasib V/s. Saradindu Mukherjee, AIR 1936 Cal 221, a Division Bench of that Court in similar circumstances held that the mandatory provision contained in Order 7, Rule 11 is intended for cases where no other complications intervene and the Court has sufficient inherent power to depart from the normal procedure to suit the exigencies of the situation. That case is also an authority for the proposition that where a suit has been registered as an ordinary suit and the plaintiff does not pay deficit court-fee and he subsequently applies for permission to continue the suit as a pauper, the application should not be rejected merely on the ground that the suit has been registered as an ordinary suit. Learned counsel appearing for the petitioners relied on certain observation made by Costello, J. in the case of Selina Sheehan v. Mohammad Fateh Nasib, AIR 1932 Cal 685. In that case the learned Judge observed as follows. "There is no machinery in Order 33 for dealing with circumstances which would oust when, after a suit has once been started, particularly after a suit has been partly heard, the plaintiff suddenly finds himself for financial reasons, no longer able to continue the suit in the ordinary way but seeks to continue the suit as a pauper. However, Order 7, Rule 11 is sufficient for our present purpose and in the circumstances of this case, we are of opinion, that the learned Subordinate Judge ought to have dealt with the matter under the provisions of Order 7, Rule 11". In Mahammad Fateh Nasibs case, AIR 1936 Cal 221 the aforesaid observation of Costello, J., was considered and it was held to be obiter dictum. The view which I have taken is supported by the decisions in the cases of Parvathi Animal V/s. Meenakshi Animal. AIR 1951 Mad 841 and A. V. Krishnappa Rcddy V/s. Venkalappa Reddy, AIR 1954 Mys 148. The view which I have taken is supported by the decisions in the cases of Parvathi Animal V/s. Meenakshi Animal. AIR 1951 Mad 841 and A. V. Krishnappa Rcddy V/s. Venkalappa Reddy, AIR 1954 Mys 148. In the case of Surendra Chandra Roy V/s. Showdamini Roy, AIR 1933 Cal 238 another Division Bench of that Court held that the power to allow a suit not instituted as a pauper suit to be continued as a pauper suit is included in the power given to the Court to allow a suit in forma pauperis. In that case also the plaintiff had instituted the suit on payment of court-fee which was found to be insufficient. The plaintiff was then given time to pay the deficit court-fee. On the last date the plaintiff prayed to be allowed to continue the suit as a pauper. The Court thereupon allowed the continuation of the suit as a pauper. It was held that the order of the Court was quite proper. In that case Selina Sheehans case AIR 1932 Cal 685 was considered but it was distinguished. For the reasons stated above, I do not find any substance in the second and third contentions raised by learned counsel. 6. The last contention which has been raised by learned counsel is equally without substance. It appears that in their rejoinder the petitioners did not specifically allege that the petition filed by the plaintiffs under Order 33, Rule 1 of the Code of Civil Procedure was not properly verified. As I have already stated, the learned Subordinate Judge gave time to the plaintiffs to file affidavit etc., and on the 19lh of August, 1966. an affidavit in support of the petition under Order 33, Rule 1 of the Code of Civil Procedure was filed and one of the applicants, namely, Sheonarain Das examined himself in support of the application. Had the defendants taken any specific objection to the effect that the application was not verified in accordance with law, the plaintiffs could have with the permission of the Court made the necessary verification. Apart from that, in the Court below this point was not taken by the defendants at the time of argument. The petitioners, therefore, cannot be allowed to raise this question for the first time in this Court. 7. As all the contentions raised on behalf of the petitioners fail, this application must be dismissed. Mr. Apart from that, in the Court below this point was not taken by the defendants at the time of argument. The petitioners, therefore, cannot be allowed to raise this question for the first time in this Court. 7. As all the contentions raised on behalf of the petitioners fail, this application must be dismissed. Mr. S. P. Jamuar, who had filed vakalatnama on behalf of the opposite party, stated, when the case was called out that he had no instruction in the case. As nobody appears for the opposite party, there will be no order for costs. 8. In the result, this application is dismissed but without costs. Kanhaiyaji, J. 9 I agree.