SANTHAPPA BHAYEE Vs. STATE

JUDGEMENT

(1.) THIS petition C. M. P. No. 794 of 1955 arises out of a prior position in the court, C. M. P. No. 35 of 1955, which had unsuccessfully prayed for leave to admit an appeal in forma pauperis. At the same time as this court refused leave, it granted permission to the petitioner-appellant to pay the court fees on the memorandum of appeal within two months and get the appeal admitted in the ordinary course. Petitioner thereupon filed C. M. P. No. 662 of 1955 seeking to withdraw the prayers in the appeal memorandum relating to the claim for maintenance both past and future and limiting the prayer in the appeal to a declaration that the 1st appellant was a legally wedded wife of the respondent and appellants 2 and 3 are children born of their lawful wedlock. The attempt was to sustain the appeal on payment of the fixed court fee of Rs. 10 as for a bare declaration. THIS petition met with the objection that there was no scope for splitting up the relief in the appeal as originally framed so as to give rise to a constituent relief by way of a bare declaration. Petitioner has subsequently filed this petition so as to permit her in the alternative to reduce the rate of the maintenance claim in the appeal memorandum to Rs. 3 per mensem and pay court fees for the appeal on the basis of a consequential diminished valuation.

(2.) LEARNED Counsel for the respondent-defendant in the case, objects that the prayer amounted to a withdrawal of a portion of the relief once allowed to be prosecuted and such prayer could not be entertained unless court fee was paid in the first instance in respect of the relief sought to be withdrawn. Reliance was placed by him on the Full Bench decision in sankaran Nambooripad v. Sirkar,1945 T. L. R. 33. In our opinion that case is clearly distinguishable. For that was a case where the plaintiff's suit was numbered and registered as a pauper suit and thereafter was prosecuted for some time. The plaintiff was then dispaupered and ordered to pay court fee and this order was confirmed by the High Court in Civil Revision. On the court fee being fixed for payment by the trial court, plaintiff having already paid part of the fee, applied for time but instead of paying the balance on the adjourned date, he filed application to withdraw or abandon the rest of the claim. It was held that the plaintiff was not entitled to do so unless court fees was paid in the first instance. During the course of his judgment Chief Justice Krishnaswami iyer pointed out the distinction as follows: "before a court passes an order settling the claim and the value thereof, for purposes of court fee it may be permissible for a party to apply and obtain the orders of the court in the matter of fixing the claim in the suit or the appeal and the court fee payable thereon. But when once that order has been passed there is no scope for any further jurisdiction in the court to exempt the payment of court fee under the guise of passing an order of withdrawal". (See page 39 of the report)

(3.) WE cannot see that the respondent is in any way prejudiced by the order allowing the amendment in the appeal memorandum or that such order would be detrimental to the revenue. WE therefore allow the petition. The plaintiff will pay the court fee due on the amended appeal memorandum within seven days. There will be no costs in this petition.