A VKRISHNAPPA REDDY Vs. VENKATAPPAREDDY

JUDGEMENT

(1.) This revision petition is directed against the order of the District Judge, Bangalore, rejecting I. A. No. 3 filed by the plaintiff in O. S. NO. 81 of 1951-52.

(2.) The said original suit was filed by the plaintiff for partition and possession of his l/4th share in the family properties, alleging that he was in joint possession, on payment of a fixed court-fee of RS. 50/-. Later, an amendment of the plaint to include a prayer for cancellation of a release deed was sought for and granted by the Court. In consequence of the amendment granted, the plaintiff was required to pay an additional court-fee of Rs. 975/-. Pleading his inability to meet the heavy demand, he filed an application (I A. No. 3) under Order 33, Rule 1, Civil P. C., through his counsel for permission to continue the suit as a pauper. The trial Court held that such an application in pending proceedings is not maintainable.

(3.) Mr. Rama Rao, the learned Advocate for the respondent, frankly admitted that he is unable to support the order of the trial Court on the grounds mentioned therein, but contended that the application is liable to be rejected on other grounds. I am unable to agree with the learned District Judge that the suit filed in the ordinary way could not be continued at a later stage as a pauper suit. It is a recognised principle that the Court which has the power to permit, on certain grounds, the institution of a suit in forma pauperis, be deemed to possess power to continue the suit on similar grounds at a later stage provided the then circumstances justify such a course. In -- 'Mahomed Fateh Nasib v. Saradindu Mukerjee', AIR 1936 Cal 221 (A), where a suit had been registered as an ordinary suit and the plaintiff did not pay the deficient court-fee but applied for permission to continue the suit as a pauper, it was held that the application should not be rejected on the ground that the suit had already been registered as an ordinary suit. It was contended by the respondent that the plaintiff, not having paid the requisite court-fee as directed, the suit should have been dismissed under Order 7, Rule 11, Civil P. C. Order 7, Rule 11, does not apply to applications to sue in forma pauperis. When the plaintiff is given time to make up the deficiency in the court-fee and within the time so allowed, he applies for permission to continue the suit as a pauper, the application should be considered on merits and the plaint should not be rejected for failure to pay the deficient court-fee (Vide -- 'Surendra Chandra v. Showdamini Roy', AIR 1933 Cal 238 (B) ). The same High Court has laid down in -- 'AIR 1936 Cal 221 (A)' that