D RAJENDRAN Vs. A DORAIRAJ CHETTIAR

JUDGEMENT

(1.) 1. The above appeal has been filed against the order dated 27-12-1982 in an unnumbered Original Petition of 1982 (C.F.R. No. 3107 of 1982) on the file of the Subordinate Judge of Udumalpet whereunder the petition dated 16-11-1982 filed by the appellant herein under O. 33, R. 1, C.P.C. for a declaration of the appellant as an indigent person and consequent permission to continue the suit in such capacity since he was not able to pay the deficit court fee of Rs. 23.250/50 due on the piaint in O.S. No. 478 of 1979 came to be rejected.

(2.) THE relevant and necessary facts are beyond controversy. THE appellant filed O.S. No. 478 of 1979 before the Court below for partition and separate possession of the suit A and B schedule properties into four equal shares and for allotment of one such share to him. THE court fee examiner in his check slip appears to have pointed out that the appellant should pay court fee under S. 37(4) read with S. 40 of Court Fees Act and consequently should pay court fee of Rs. 23,250,50. On the said basis, the Court below passed an order dated 10 12-1980 in check slip No. 638/XXI/N Diary No. 8 that the appellant was liable to pay court fee of Rs. 23,250.50.

(3.) THE appellant at the time of the institution of the suit paid court fee of Rs. 200 and after failing in his attempt before this court and the Supreme Court filed a petition under O 33, R. 1, C.P.C. for leave to continue the suit as an indigent person. THE said petition was opposed by the respondents. After considering the respective submissions of the parties, the court below rejected the petition on the ground that the requisite court fee was not paid within the time fixed by the court inspite of sufficient time having been given by the court below as well as this court. THE court below also was not inclined to agree with the appellant on account of long interval of time between the expiry of the time fixed for payment of the deficit court fee and the date of the application.