G KANDASWAMI NAICKER Vs. G RAJU NAICKER

JUDGEMENT

(1.) THIS is an appeal against the judgment of Balakrishna Aiyar J. directing the appellant to pay a sum of Rs. 615-1-0 towards the court-fee due on a plaint which he presented on the original side of this court. The suit was for partition. In the plaint there were averments regarding a mortgage decree and a sale which followed that decree and the plaintiff apparently contended that the decree and the sale were not binding on him. The plaint was presented on 285-1952 with a court-fee of Rs. 100, evidently on the assumption that it fell under Art. 17-B Sch. II of the Court-fees Act. On 12-8-1952 the office returned the plaint directing the plaintiff to value the relief to set aside the mortgage decree and to pay court-fee on such valuation. Thereupon the appellant filed an application for leave to continue the suit in forma pauperis. On 23-9-1953 the learned Master passed an order refusing leave to the plaintiff to continue the suit as pauper but allowed him six weeks time to pay deficit court-fee. Against this order of the Master an appeal was taken to the learned Judge in Chambers. Ramaswami J. by his order dated 29-1-1954 disagreeing with the Master allowed the plaintiff to continue the suit as a pauper. In pursuance of this order the plaint was registered and numbered as C. S. No. 74 of 1954 on 24-2-1954. Against the order of Ramaswami J., one of the defendants preferred an appeal, O. S. A. No. 59 of 1954. Meanwhile the government on information that the appellant was possessed of properties which had not been disclosed in his original pauper petition filed an application on 8-12-1954. for dispaupering the appellant. When the appeal against the order of Ramaswami J., came up before the Appellate Bench they made an order on 15-4-1955 directing the Master to submit a finding on the question of the pauperism of the appellant after taking additional evidence. As the subject- matter was the same, the Master passed a general order on 17-10-1955 to this effect: " It follows that the order in Appln. No. 5675 of 1954 is that the plaintiff is dispaupered and that he shall pay the court-fee within six weeks from today. THIS shall however await further orders in O. S. A. No. 59 of 1954." On 2-2-1956 O. S. A. No. 59 of 1954 was allowed and the order of Ramaswami J., was set aside. THIS meant that the appellant must be deemed to have not been permitted at any time to continue the suit in forma pauperis. On 16-21956 the appellant purported to withdraw the suit and it was dismissed. It was then contended on behalf of the Government that the appellant was liable to pay full court-fee under O. XXXIII rule 11 C. P. Code. A further fact may be mentioned. On 22-11-1955, that is after the order of the learned Master dispaupering him and before the disposal of the appeal by the Division Bench, the appellant paid a sum of Rs. 987-6-0 as additional court-fee, but according to the office this was not adequate and the appellant had to pay further court- fee. Balakrishna Aiyar J. held that the appellant had been allowed to sue as a pauper and subsequently he had been dispaupered and therefore the provisions of O. XXXIII rule 11 of the C. P. Code would apply and made the order now under appeal.

(2.) WITH respect to the learned Judge, we are unable to agree with this view. In more than one place the learned Judge has said that the appellant had been permitted to sue in forma pauperis obviously referring to the order of Ramaswami J., passed on 29-1-1954. But the order of Ramaswami J., was in terms set aside by the Division Bench which disposed of O. S. A. No. 59 of 1954 and the order of the Master was restored. The legal result of the order of the appellate court would therefore be as if the appellant had never been allowed to continue the suit in forma pauperis. The learned Judge observed that the decision of the Bench in O. S. A. No. 59 of 1954 merely confirmed the order of the Master by which the appellant was dispaupered. That is not so. On a proper construction of the order of the appellate court, we hold that the order of Ramaswami J. allowing the appellant to continue the suit in forma pauperis was set aside. Once it is held that the appellant was never allowed to continue the suit in forma pauperis, and it is also the case of the Government that he had never paid the requisite court-fee, it follows that there was never a suit properly on the file of this court either in forma pauperis or on payment of the requisite court-fee. Owing to the fact that the suit was numbered on account of the order of Ramaswami J. the appellant purported to withdraw the suit. But this would not be the correct position in law. There was no suit for him to withdraw. What the plaintiff must be deemed to have done is to stop further prosecution of his claim. Once he was not allowed to continue the suit in forma pauperis and he had not paid the requisite court-fee, the suit must be deemed to be not on the file, and if the plaintiff did not choose to pay the deficit court-fee, what this court can do is to return the papers to him. In such circumstances, we are of opinion that the provisions of Order XXXIII rule 11 of the Civil Procedure Code will have no application. The appellant could not be directed to pay any further court-fee under that provision The appeal is allowed and the order of Balakrishna Aiyar J. requiring the appellant to pay a further amount of Rs. 6151-0 as deficit court-fee is set aside. There will be no order as to costs. Appeal allowed.