BALAKRISHNAN Vs. NARAYANAN NAIR

JUDGEMENT

(1.) The two points that arise for decision in this revision by the defendant in O. S.5 of 1976 on the file of the Sub Court, Irinjalakuda, seeking to revise an order passed on I. A. No. 1601 of 1981 permitting the respondent herein to sue as an indigent person are (1) Whether an application under O.33 can be filed by a person after the institution of the suit. (2) Whether the failure to issue a notice to the Government Pleader as enjoined under R.6 of O.33 is fatal to the application.

(2.) The suit was instituted for declaration of title and recovery of possession of the property scheduled in the plaint. At the time when the suit was instituted the plaintiff paid the requisite court fee on the basis of valuation shown in the plaint. When, the defendant the petitioner herein-appeared in the suit, he raised an objection that the court fee paid was inadequate and was very low. An issue was raised in this regard as issue No. 5 "whether the valuation shown ia the plaint was correct". The Trial Court issued a commission to assess the correct value of the plaint schedule property for the purpose of court fee. The commissioner appointed in the case submitted a report stating that the income from the property in question is more than Rs. 8,000/- and the Trial Court directed the plaintiff to pay court fee on the basis of the valuation shown by the Commissioner. As the plaintiff was not in a position to pay any court fee, he filed an application under O.33 of the Code of Civil Procedure praying that he may be permitted to sue "informa pauperis". After conducting an enquiry and duly considering the evidence of the plaintiff and the defendant who were respectively examined as Pw. 1 and Rw. 1, the learned Subordinate Judge allowed the application. The plaintiff is admittedly a peon in the Education Department. As stated earlier it is this order that is challenged on the above mentioned grounds.

(3.) There is nothing in O.33 of the Code of Civil Procedure which shows that an application under this Order should be filed before the institution of the suit and should not be filed after the institution of the suit. Counsel for the petitioner was also not able to point out any rule prohibiting filing of an application under this Order after the institution of the suit. The main argument of counsel for the petitioner is that the Trial Court after having directed the plaintiff to pay the deficit court fee should have rejected the plaint as contemplated under O.7 R.11 as the plaintiff failed to pay the court fee as directed by the court. It is true that R.11 of O.7 says that the plaint shall be rejected in the cases referred to in clauses (a) to (d) therein. In clause (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, the plaint can be rejected. R.13 states that the rejection of the plaint on any of the grounds mentioned in R.11, shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. If really the plaintiff is entitled to be declared or treated as indigent person under O.33, there is no reason why he should be made to suffer the rejection of the plaint under R.12 of O.7 and then make him to file a suit under R.13 along with a petition under O.33. These Rules are intended to advance justice and prevent miscarriage of justice. It is not fair or proper to deny substantial justice on purely technical ground or grounds. This apart, as stated earlier, there is nothing in any of the rules under O.33 which either expressly or impliedly prohibits the filing of an application under the said Order after the institution of the suit. Under R.9 of O.33, the defendant or the Government Pleader is at liberty to file an application and get an order that the plaintiff is a pauper. It is true that an enquiry on the question whether the plaintiff is a pauper is not exclusively a matter between the plaintiff and the State. But the question whether proper court fee is paid on the plaint is primarily a question between the plaintiff and the State. (See Vasu v. Chakki Mani ( AIR 1962 Ker. 84 ), Nomi Chand v. Edward Mills Co. ( AIR 1953 SC 28 ), Ratnavarmaraja v. Smt. Vimala, ( AIR 1961 SC 1299 ) and Hydrose v. Makkar ( 1983 KLT 166 )