KAMALAMMA Vs. BATCHNI MARIYANNA

JUDGEMENT

(1.) The short point for decision in this petition is whether the petition is maintainable in law. The plaintiff is the petitioner and she filed a suit in the Court of the Subordinate Judge, Kolar, for refund of consideration amount under a sale deed, interest thereon and costs to be paid by the defendants and costs incurred by her in filing the suit totalling to Rs. 8,636-13-6. The suit was filed in forma pauperis. Along with the plaint she filed an application under Order XXXIII of the Code of Civil Procedure praying for permission to institute the suit in forma pauperis on the ground that she did not have the wherewithal to pay the court-fee, that she had no property except the wearing appeal and hence, was not in a position to pay the requisite court-fee. This petition was opposed by the defendants who alleged that she was in a position to pay the requisite court-fee. The learned Subordinate Judge by his order dated 23-1-1956 held that the plaintiff-petitioner was in a position to pay the court-fee and directed her to pay the court-fee, neither was there a prayer on her behalf for any extension of time. With the result, the plaint was rejected. The plaintiff-petitioner has come up by way of revision to this Court.

(2.) From the records it will be seen that the affidavit filed in support of her petition is iteself defective. It is not sworn to as required by law. The defendants, on the other hand, filed an affidavit challenging her statement that she is a pauper. They alleged that she was possessed of valuable moveable as well as immovable properties. To this affidavit filed by the defendants (respondents) no reply was filed by the petitioner though she was given a couple of chances to do so. There is no evidence on her behalf to show that she is not in a position to pay the requisite court-fee. She has not entered the witness-box. Neither has she examined any witnesses in support of her allegation. Mr. Shankara Reddy, the learned Advocate for the petitioner states that there is a report by the Deputy Commissioner to the effect that she is not in possession of any properties. But that report by itself, I do not consider, to be sufficient, to establish her pauperism. It was her duty to give a proper affidavit and not only that but also to satisfy the Court that she was not in a position to pay the requisite court-fee. Hence on facts I find that the learned Subordinate Judge was right in disallowing her contention and calling upon her to pay the court-fee on the plaint.

(3.) As I have stated already, time was given to her to pay the court-fee by 31-1-1956. But she did not do so. She did not even pray for any extension of time to pay the court-fee. The result was the rejection of her plaint and so, the question arises as to what is the remedy open to her. Can she come up to this Court by way of revision? Has she no other remedy open to her which she could have profitably resorted to. As it is this revision petition is filed as though the subsequent order of the learned Subordinate Judge is not in existence. On the other hand, a final order has been passed rejecting her plaint and that comes within the definition of a decree as per S. 2(2) of the Civil Procedure Code where 'decree' is defined as follows: