MALATHI AMMA Vs. KALLYANIKUTTY AMMA

JUDGEMENT

(1.) These petitions arise out of seven suits brought by the same plaintiffs, and they pose a question under O.33 of the Code which seems to be well nigh bereft of authority.

(2.) The suits were initially brought by four plaintiffs after obtaining permission to sue as paupers. Plaintiffs 2 to 4 were minors, and one Bhargavi Amma was their next friend. (She still is the next friend of plaintiffs 3 and 4; the 2nd plaintiff attained majority during the pendency of the suits and he has obtained an order discharging the next friend and granting him leave to proceed in his own name). Subsequently, it seems to have been discovered that this Bhargavi Amma was a necessary party, &, on application duly made, she joined as a plaintiff in her own right and became the 5th plaintiff. This she did without paying any court fee and without obtaining permission to sue as a pauper. On 18-8-1958, eight months after the 5th plaintiff thus came on record, the Trial Court woke up to these facts and directed the plaintiffs to pay the necessary court fee in all these seven suits and gave them time until 16-9-1958 for the purpose. Against this order the five plaintiffs have come up in revision.

(3.) I do not think that the order can be upheld so far as plaintiffs 1 to 4 are concerned. Having been given leave to sue as paupers, under R.8 of O.33, their application has become a plaint and they are entitled to proceed with the suit in the ordinary manner without paying any court fee. The only provisions under which they can be called upon to pay court fee are R.10, 11 and 11 A, and a perusal of these rules will show that there are only two contingencies in which they can be called upon to pay court fee before the termination of the suit. One is where they are dispaupered under R.9, and the other where part of the claim is abandoned. Neither has happened in this case. The court below has no doubt observed that there is no case that the 5th plaintiff is a pauper. It is said that this observation is incorrect, but it is not necessary for me to go into that question. It is sufficient to observe that the procedure required for a dispaupering under R.9 has not been followed, and that there is no order of the court dispaupering plaintiffs 1 to 4 under that rule. And I might add that it seems to me extremely doubtful from the wording of clause (b) of that rule whether a plaintiff who has obtained permission to sue as a pauper can be dispaupered because somebody who has the means to pay the court fee has joined him as a coplaintiff.