MUNUSWAMI GOUNDAR Vs. MOTTAYYA KOUNDAN

JUDGEMENT

(1.) This is an appeal against the order of the learned District judge in O. P. No. 4 of 1950, which was filed for leave to sue 'in forma pauperis'. The suit was for partition and separate possession of a half share of the plaintiff in the joint family properties. The application for, leave to sue 'in forma pauperis' which complied with the retirements of Rule 2 of Order 33, that it should contain the particulars in regard to plaints in suits, was filed in the District Munsif's Court, Trikoilur in the first instance. In that court there was an enquiry regarding the pauperism of the plaintiff, and permission was granted to sue 'in forma pauparis'. Thereafter, written statements were filed and issues were framed. But the question regarding the jurisdiction of the court to entertain the suit, which was raised at the instance of the defendants, was tried as a preliminary issue. The Court held that it had no pecuniary jurisdiction to entertain the suit and directed a return of the plaint at 11 A. M. on 16-9-1949. In the suit the plaintiff attacked certain alienations, which were effected by his father, the first respondent. The petitioner attained majority on 3-3-1945, and he filed the application in the District Munsif's Court for leave to sue 'in forma pauperis' on 2-3-1948, i.e., just on the last day of the expiry of the three years, calculated from the date of the petitioner's attaining majority. After the plaint was returned at 11 a. m. on 16-9-1949 it was presented in the District Court through a vakil on 16-9-1949 itself. The application was, however, returned as there was no proper presentation of the document. Thereafter the petition was presented by the petitioner in person on 4-10-1949 in the District Court. The learned District Judge held that the suit should be treated as having been instituted on 4-10-1949, and in this view he held that the relief of the petitioner as against items mentioned in paragraph 4 of his judgment and against the defendants referred to therein was barred by limitation, and that the appellant should not be allowed to sue as a pauper in so far as the items and the defendants referred to in that paragraph were concerned. It is against this order that the present appeal was filed by the appellant.

(2.) Under Order 33, Rule 2, Civil P. C. which lays down the contents of an application for leave to sue as a pauper, it is required that the application should contain the particulars required in regard to the plaints in suits, and rule 3 lays down that notwithstanding anything contained in the rules the application shall toe presented to the court by the applicant in person unless he is exempted from appearing in court, in which case the application may be presented by an authorised agent who could answer all material questions relating to the application. In the petition, O. P. No. 4 of 1950, the prayer was among others, that the petitioner should be allowed to sue as a pauper. The duestion is whether there was a valid presentation Of the petition on 16-9-1949.

(3.) It is not disputed that, if there is no valid presentation on that date, the only date on which there was valid presentation was 4-10-1949. It is no doubt true that, if once an application for leave to sue 'in forma pauperis' was properly presented and leave is granted to sue as a pauper, the plaint is deemed to have been presented on the date on which the petition was filed. This is the effect of Rule 8 of Order 33. Even if leave is refused, if there was valid presentation of the petition as required by R. 3, the decisions have held that, if subsequently the court-fee is paid, the plaint is treated as having been presented on the date on which the pauper petition was presented. These propositions are well established and do not require any citation in support of them. This court considered an intermediate situation which arises, namely, if the suit was valldly instituted by paying court-fee, but it was subsequently found that the plaint required an additional court-fee, and the plaintiff was unable to pay that court-fee, it is open to him to apply to the court to allow him to continue the suit as a pauper. In that event, as held in -- 'Subbarao v. Venkara-ratnam', AIR 1939 Mad 823 (A) it is not neces-sary for him to comply with the requirements Of Er. 2 and 3, snd the power which the court exercises in such an event is considered as an inherent power under Section 151, Civil P. C. The argument of the appellant now is that the document which was presented on 16-9-1949 should be treated as an unstamped plaint, though it contained a prayer that leave to sue as pauper should be granted, and the subsequent presentation of the same document on 4-10-1949, as an application to continue the suit which was instituted on 16-9-1949 on unstamped plaint, and invokes in his aid the principle of -- 'AIR 1929 Mad 828 (A)'. It is rather difficult to accept this argument which is ingenious. The only document which was before the court on 16-9-1949 and 4-10-1949 was the applica tion which contained the particulars required for the plaint in a suit and it also contained a prayer for leave to sue 'in forma pauperis'. The document, it is needless to state, should have been presented as required by Rule 3 by the party in persoa. That was not done. In -- 'AIR 1929 Mad 328 (A)' the situation was totally different. A suit was properly instituted on a plaint in which, as it ultimately turned out, an insufficient court-fee was paid, and the plaint in that suit could validly be presented by the vakil duly empowered by a vakalat. But this is not the case here. Throughout, the plaintiff was insisting that he should be allowed to sue as a pauper, and it was not his case that he intended on 16th September 1949 to treat it as an unstamped plaint. The petition contained a prayer that he must be allowed to sue as a pauper. The document merely because it contained allegations which are necessary for a plaint cannot be split up in the manner contended for by the appellant. His single document which conformed to the requirements of the Code regarding the particulars that it should contain, unfortunately for the appellant, was not presented in person on 16-9-1949. If the presentation was not in accordance with the rule, it is undoubted law, that such a presentation is non est in the jeye of the law and has not the legal consequence of stopping the running of time. For these reasons we agree with the conclusions of the learned District Judge and dismiss the appeal with costs.