MUNIAN Vs. KESAVA PANDITHAN

JUDGEMENT

(1.) C. R. P. No. 1079 of 1952 arises out of an order passed by the learned District Munsif of Vridhachalam, refusing leave to the petitioner to file a suit in 'iorma pauperis' on the ground that he has means to pay court-fee due on the plaint. In the order relesing leave to sue as a pauper the learned District Munsif directed the petitioner to pay court-fee on or before 31-1-1952. This direction was not complied with by the petitioner and when the matter came up again and after giving further extension of time, the learned District Munsif dismissed the original petition for leave to sue in 'forma pauperis'. No appeal or revision has beep preferred against that subsequent order dismissing the original petition for leave to sue as a pauper.

(2.) A preliminary objection has been taken by the learned counsel for the respondent that the C. R. P. No. 1079 of 1952 is not competent by reason of the subsequent order rejecting the plaint in toto for non-compliance with the direction to pay court fee due on the plaint and which had not been taken on revision or appeal. He has invited my attention in support of his contention to a decision of my learned brother Panchapakesa Aiyar J. reported in --'Bommisetti Ramayanuna, In re', (A). The facts reported in that case arc exactly on a par with the facts obtaining in the present case and there appears to be no controversy at all with regard to those facts. Panchapakesa Aiyar J. has followed a Full Bench ruling of this court reported in -- 'Salyanarayanacharyulu v. Ramalingam', (B) and has applied the principle of that decision to the facts of that case. I have gone through the decision of the Full Bench and also the decision of my learned brother. In my view, the facts that arose for consideration in the Full Bench ruling, are not in 'pari materia' with the facts that arise in the present civil revision petition and I do not think that the principle of that Full Bench decision could be made applicable to the facts of the present case. In the Full Bench decision the suit had already been numbered and registered and on objection being taken as to the correctness of the court-fee paid it was found that the suit had been undervalued and a large amount of deficit court-fee was ordered to be paid and it was not paid. Thereupon the suit was dismissed. The order passed in that case is one which comes directly under the definition of a decree contained in Section 2, Sub-clause (2), C. P. C. But in the present case, it cannot be said that what has been rejected is a plaint or a suit; for taking into consideration the special procedure provided for in the Civil Procedure Code under Order 3.3 for applications for leave to sue in forma pauperis, it cannot be said that until and unless the application for leave to sue be been granted there is any plaint before the court to be numbered, registered or rejected. This would arise only when an order is passed under Order 33, Rule 8 which is not the case here. What is before the court until such a stage is reached is only an application for leave to sue. If a condition is imposed that in order to grant the application for leave to sue or to entertain the plaint filed along with the application as a suit, court-fee is to be paid within a certain date, ft cannot be said that the original petition has become converted into a plaint or a suit in order to attract the provisions of Order 7, Rule II. It is also fetching too much to say that simply because a small fee of Rs. 0-8-0 has been affixed to the application for leave to sue in 'forma pauperis', the court- fee that has been directed to be paid is an additional court-fee on the plaint as if the plaint had already been numbered and entertained as a suit. . Except the Full Bench decision which has been applied to the facts of the case before my learned brother, Panchapakesa Aiyar J, there appears to be no other authority cited before him on the point which has arisen for decision before me. Mr. Venkatesan the learned counsel appearing for the petitioner has invited my attention to the following decisions reported in -- 'Secretary of State v. Jillo', 21 All 133 (C); -- 'District Official Receiver v. Firm Sohan Lal Ramil Das , AIR 1940 Lah 446 (D) and --'Mahadev Gopal v. Bhikaji Vishram', MR. 1943 Born 292 (E) where it has been held that before the application for leave to sue in forma pauperis is granted under Order 33, Rule 8, the application cannot be deemed to be a plaint in order to attract either the definition of a decree to the order that may be passed therein or the provisions of Order 7, Rule 11. I am inclined to agree with the rulings in these decisions cited by the learned counsel for the petitioner. I, therefore, see no point in the preliminary objection taken by the learned counsel on behalf of the respondent.

(3.) Coming to the merits of the application for leave to sue in 'forma pauperis' it has to be noted that the petitioner is a deaf and mute person. He is endeavouring to recover the property which has been settled upon him by virtue of a deed of settlement referred to in the pauper application. The evidence with regard to his capacity to pay is to the effect that he has two other small items of property which are worth about Rs. 400 or Rs. 500. But it must be remembered that in these two items of properly which are said to be in his possession he has got only a life interest. He is in possession of the items by virtue of the settlement deed which clearly provides that he would not be entitled to alienate or otherwise encumber this property but would be entitled only to a life interest. It cannot be said that mere possession and enjoyment of a life interest in these two items of properly would make him a person possessed of sufficient means to say the court-fee required on the plaint which he has presented to the court. The very fact that these properties are not to be encumbered as recited in the deed of settlement under which he gets a life interest, would scare away any person who could be approached to lend any sum by way of mortgage or otherwise. The learned District Munsif has not found in clear terms that the petitioner has sufficient means to pay the court-fee due on the plaint. The finding is not quite satisfactory for it confines itself to the mere statement that he has means for the mere reason that ho is in possession and enjoyment of two items of property on which it will clearly be not possible for the petitioner to raise any funds to pay the requisite court-fee. Any person who could be approached for lending money would certainly hesitate to advance money on account of the fact that what the petitioner is possessed of is only a life interest in those items and his powers of alienation are restricted in respect of the properties. Therefore, it is too much to say that in cases like these he has sufficient means to pay and I do not think that the rejection of his application for leave to sue in 'forma pauperis' is light, I would, therefore, set aside the order of the learned District Munsif and direct that the petitioner be entitled to the leave which he has asked for to sue in 'forma pauperis. His application is allowed and the plaint will be received, numbered and registered. C.R.P. No. 1079 of 1952 is allowed. (4) In regard to other C. R. Ps, (C. R. P. Nos. 1853 and 1863 of 1952) I do not think that any orders are required in view of the order passed In C. R. P. No. 1079 of 1952. They are both dismissed. Thesse will be no order as to costs in any one of these petitions.