PARVATHI AMMAL Vs. MEENAKSHI AMMAL

JUDGEMENT

(1.) THIS is an appln. to revise the order of the learned Subordinate Judge of Tiruneiveli in I. A. No. 11 of 1949 in O. S. No. 70 of 1948, a suit instituted 'in forma pauperis' on the file of that Ct. The deft. is the petnr., & the pltf., the resp. in this civil revn. petn. The resp. filed an appln. O. P. No. 58 of 1947, under Order 33 Rr. 1 & 2, Civil P. C. 'In forma pauperis' in the Ct. of the Subordinate Judge of Tirunelveli clanging to recover possession of some landed property with mesne profits, & also claiming an enhanced maintenance for herself, besides a sum of Rs. 975 for expenses of religious observances & Rs. 300 the value of certain silver vessels belonging to her. The resp. is the brother's widow of the petnr. There were bequests in favour of both the parties under a Will of the father -in -law of the resp. During the course of the enquiry into the pauperism of the resp., she was put in possession of the landed property claimed by her, & thereafter the suit was regd. as O. S. No. 41 of 1948, after contest regarding the pauperism of the resp. Issue No. 5 framed in the suit was, "Whether the suit was within the pecuniary jurisdiction of the CL of the Subordinate Judge of Trinelveli". This issue was taken up as a preliminary issue, & the Ct. held that the value of the suit was below Rs. 3000 & therefore returned the plaint for presentation to the Ct. of the District Munsif of Tirunelveli. There was an appeal by the resp. to the District Ct. Tirunelveli in C. M. A. No. 22 of 1948, but the District Ct. confirmed the order of the Subordinate Judge.

(2.) THEREAFTER the resp's advocate who had originally appeared in O. S. No. 41 of 1943, re -presented the plaint which had been returned by the Ct. of the Subordinate Judge, after amending it by the inclusion of additional claims & prayers for additional reliefs which resulted in the valuation of the suit being fixed at the sum of Rs. 6285. The plaint, as amended & enlarged, was re -presented to the Sub Ct. itself. The learned Subordinate Judge made an endorsement on the plaint dated 10 -8 -1948 to the effect, "file at party's risk". The re -presented plaint was numbered as O. S. No. 70 of 1948 on the file of the Ct. of the Subordinate Judge, Tiruneveli. The petnr. filed a written statement on 5 -10 -1948, wherein she pleaded, 'inter alia ', that the suit had not been properly instituted. On 6 -1 -1949 the resp. filed I. A. No. 11 of 1949, purporting to be under O. 33, Rr. 1 & 8 & Section 151, Civil P. C. praying that the Ct. should accord permission to her to institute the suit, O. S. No. 70 of 1943, 'in forma pauperis'. This appln. was ordered by the learned Subordinate Judge & the permission sought for was granted.

(3.) I therefore proceed on the basis that the plaint as amended was a new plaint & should have been presented to the Ct. of the Subordinate Judge by the pltf. herself in person, in conformity with the provisions of the Order 33, Rule 3 , Civil P. C. The learned Subordinate Judge, instead of insisting upon compliance with the provision of this rule, numbered the amended plaint as O. S. No. 70 of 1948. When the deft. filed a written statement objecting to the procedure adopted by the learned Subordinate Judge & raising a plea, that the suit had not been validly instituted, the pltf. here resp., filed I. A. No. 11 of 1949 through her advocate asking for leave to sue 'in forma pauperis', treating the plaint in O. S. No. 70 of 1948, already on the file of the Ct., as the petn. for leave to sue in forma pauperis'. The question is, whether this was a sufficient compliance with the law. The amended plaint which was represented to the Sub Court, & registered as a suit, O. S. No. 70 of 1948, could not thereafter be taken back by the pltf. so long as the suit was pending. Even assuming that it can be formally handed over to the pltf. & taken back along with I. A. No. 11 of 1949, I consider it was a needless formality, having regard to the decisions of this Ct, in 'Subbarao v. Venkataratnam',, 53 Mad 43 : : AIR 1929 Mad 828 ; 'Bava Sahib v. Abdul Jhani',, 64 M L J 728 : : AIR 1933 Mad 498 & 'Neeli Khandi v. Kunhayisa : AIR 1936 Mad 158 . If the pltf. had presented in person I. A. No. 11 of 1949 for leave to sue 'in forma pauperis', & the plaint in respect of which leave was sought, was already on the file of the Ct. she could be considered as having presented the plaint in person on the date when I. A. No. 11 of 1949 was filed by her in person in Ct. Unfortunately, she did not present I. A. No. 11 of 1949 in person though the verified petn. was signed by her & she declared the truth of its contents. In these circumstances, it is not possible to uphold the order of the Ct. below.